Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2022 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (12) TMI 972 - CESTAT AHMEDABADLevy of Central Excise Duty - finishing process of stentering of fabrics sent by M/s. Shrinathji Textiles and removal of such finished fabrics under the delivery slips to various parties from its premises - process amounting to manufacture or not - HELD THAT:- The learned commissioner (appeals) has relied upon the statement dated 05.06.2002 of Mr. Kailash S. Jalan, power of attorney holder of M/s. Shreenathji Textiles, in which he has stated that M/s. JTL has carried out process of stentering etc on the hand bleached/dyed/screen print fabrics sent by M/s. Shreenathji Textiles in the factory of M/s. JTL. However, on perusal of records it transpires that it is not the case in the show cause notice that M/s. JTL carried out process other than stentering nor is there a specific case or evidence referred in the SCN that M/s. JTL carried out processes on the fabric falling under chapter 54 & 55 of CETA, 1985 which otherwise also do not specifically include stentering as a process amounting to manufacture. In absence of such a case in the SCN and in absence of evidence to show that M/s. JTL carried out process other than stentering of fabrics falling under chapter 52 or carried out process on the fabric falling under chapter 54 or 55, demand of duty as against M/s. JTL cannot be sustained. The entire case of the revenue is that the seized delivery slips are in respect of fabrics subjected to Stentering in the factory of M/s. JTL is based on statements of the Director of M/s. JTL, proprietor and power of attorney holder of M/s. Shrinathji Textiles, some buyers and warehouse keeper. Despite specific direction to consider the plea of the appellants as per this tribunal order dated 25.07.2018, none of these persons have been examined as witness or cross-examination was given by adjudicating authority in terms of section 9D of the Act. It can be seen that statements having not been retracted, as held by the authorities below, is not the exception provided under section 9D of the Act and therefore, their testimony has to be excluded from consideration. It can be seen that excluding the statements, there is no evidence to show that the delivery slips were in respect of fabrics subjected to Stentering in the premises of M/s. JTL. Moreover, Yogesh Shah who is supposed to have written the delivery slips and who is supposed to have supervised, on behalf of M/s. Shrinathji Textiles, the process of stentering at the premise of M/s. JTL, has also not been examined in the investigations and in adjudication - there is otherwise no reliable evidence showing the said quantity of 11,12,820 L meters fabrics was stentered by the appellant in its premise. In the circumstances, duty demand cannot be sustained upon M/s. JTL. Since duty demand cannot be sustained, penalties upon the appellants are also liable to be set aside. Appeal allowed.
|