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TMI Blog1992 (9) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... destinely removing Polythene Films falling under sub-heading 3920.23 of the Schedule to the Central Excise Tariff Act, 1985, without payment of Central Excise Duty. They took the statement of Shri P.P. Agarwal, partner of the appellant Company. They checked the records and found that the appellant Company was manufacturing polythene films. Then a verification was made and they found 137 Rolls of Polythene Films weighing 4082.50 Kgs. lying in the factory of the appellants. It appeared to the Department that the appellants had cleared the polythene films, which had crossed the exemption limit of 15 lakhs under Notification No. 175/86 dated 1-3-1986. They did not obtain the Central Excise Licence as required under Section 6 of the Central Excises and Salt Act, 1944. It was also the case of the Department that at the time of joint physical stock-taking, Shri Agarwal, named above, did not say that the goods found in the premises of the appellant Company were not polythene films in rolls. It was also the case of the Department that only after 55 days of detention, they claimed that these are Lay-Flat Tubings. They also verified the stock register and it appeared to the Department that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be accepted. On the contrary, he wrote a letter dated 7-2-1990 after a lapse of one and a half months from the date of visit of the officers to the appellant Company, denying the contents of his statement dated 21-12-1989. Even in that letter, he did not mention about the affidavit dated 22-12-1989 and no such affidavit was received by the Headquarters in this case. He also pointed out that the records of the appellants' factory were perused, which revealed clandestine removal of Lay-Flat Films. Accordingly, the duty demanded in justified. He also stated that the confiscation of the seized goods is also justified. 4. On the above arguments, the first point for our determination is whether the seizure of 4082.500 grms. of subject goods by the Central Excise Officers, is justified and whether they are Polythene Films or Lay-Flat Tubes. 5. The main case of the Department is based on the statement of Shri P.P. Agarwal, a partner of the appellant Firm. That statement was given on 21-12-1989. But on 22-12-1989, he affirmed an affidavit stating that the materials under seizure were Lay-Flat Tubes and not Polythene Films. This statement of Shri Agarwal was recorded by Dr. K.K. Jain who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they went there, they weighed the goods in question, individually. But at the time of search and detention, the weight of 94 rolls was shown as 35 Kgs each while 28 rolls were shown as 20 Kgs. each and 15 rolls as 15.500 Kgs. each. Of these, no two rolls can have the very same weight. The weight of Lay-Flat Tubings in the form of Sheets, should differ from roll to roll as the net weight cannot be ascertained, until and unless the roll is removed from the extruder machine. In such circumstances, the best evidence to prove the case of the Department was to draw the samples of the goods in question and get them tested. The same was not done in this case. The second method of proving the same was to contact the customers of the appellant Company and to find out from them as to the nature of goods which were sold to them by the appellant Company. Such procedure was also not followed by the Department. The burden of proof that the goods were polythene films and not Lay-Flat tubings is squarely on the Department and the Department, conversely, has failed to prove that the materials seized were polythene films. In such circumstances, the confiscation of the goods in question is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the decision of the Bombay High Court reported in 1984 (17) E.L.T. 46 (Bom.) = 1989 (23) ECR 306 (Bombay) in the case of Choksi Purshottam Vishambhai v. Union of India & Others. 9. Another important factor is that in spite of the fact that the appellants furnished the names and addresses of its customers through their letter dated 21-3-1990, no enquiry was conducted by the Central Excise Officers to find out as to whether Lay-Flat Tubings or Polythene Films were supplied by the appellants. On the basis of inconclusive enquiry no adverse finding can be arrived at against the appellants. These are the principles laid down in the following decisions which are relied on by the learned Consultant, Shri Chattopadhyay in this behalf: (i) 1986 (26) E.L.T. 997 (Trib.) in the case of M/s. Ebenezer Rubbers Ltd. v. Collector of Central Excise, Ahmedabad; (ii) 1989 (43) E.L.T. 361 (Trib.) in the case of M/s. Eros Metal Works (P) Ltd. v. Collector of Central Excise; and (iii) 1990 (49) E.L.T. 415 (Tri.) = 1990 (30) ECR 16 (CEGAT) in the case of Smt. S. Ayudayamal v. Collector of Central Excise, Madurai. It is, thus, seen that there is no record to show that the appellants had manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmises and conjectures. In all cases of taxation the burden of proving necessary ingredients to justify taxation is heavily on the Department. In the instant case, the Department could not bring forth the allegations made by them by adducing evidences to show that the appellants had cleared Lay-Flat Polythene Films. Further, the affidavits sworn by M/s. Calcutta Poly Plast Manufacturers and Dealers Association, M/s. Indian Plastic Federation and M/s. West Bengal Plastic Job Work Association, which are relied on by the appellants during the adjudication proceedings and which are produced at pages 75 to 77 of the paper-book, go to show that Lay-Flat Tubings when packed in machines are known in the trade as polythene rolls. This fact was also ignored by the learned Collector. This is, further, strengthened by the fact that the appellants had produced the orders placed by the Customers showing that they placed orders for Lay-Flat Tubings. 11. The learned Adjudicating Authority has relied on the bills and challans alleged to have been submitted by the representative of M/s. Chanda Plastics and a statement had been given by the representative of the said Firm. No such copies were furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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