TMI Blog2005 (11) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Revenue. Since all these appeals have been filed against the same impugned order of the Commissioner, these are being taken up together. 2. The facts in brief are that M/s. Garlon Polyfab Industries Limited is the manufacturer of Polyester Textured Yarn. Based on information that they are indulging in suppression of production, the Central Excise Officers visited their factory as well as their office premises on 29-10-98 and recovered certain records and documents, which were taken in possession for investigation. From one of the file, month-wise production reports and consumable stock reports for the period June, 1996 to March, 1998 (except for the month of Feb., 97. March 97 and Nov. 97) were recovered. It was found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d factor of 103.92% for the 14 months period. In the instant show cause notice duty stands demandable only on the excess production quantity as detected in the production reports, that too, after giving due allowance for wastage recorded in the said production reports. It was pleaded that the demand can only be for the period for which the production reports have been recovered. They however, contested that the Commissioner has wrongly calculated the amount of duty as he has not taken into account the opening balance and closing balance of POY but has taken the entire quantity of the receipt including the opening balance for working out the quantity of raw material received and demanded duty. It was pleaded that either the quantity of textu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur II, reported in 2004 (173) E.L.T. 385 and Truwoods Pvt. Ltd. v. C.C.E., Visakhapatnam, reported in 2005 (186) E.L.T. 583. 6. It was contended on behalf of the Revenue that the findings of the Commissioner in Para-47 of his order that the yield works out to 103.92% during the 14 months period for which the monthly production. reports are available is very much valid. This is based on actual figures and the same has been discussed in Para-20 of the Commissioner s order under heading brief facts of the case. It was also pleaded that the Commissioner should have confirmed the demand for the entire period of the show cause notice as the machinery remained the same, the raw material remained the same and the efficiency of the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he has accepted that he was looking after the procurement of raw-material for manufacture of texturised yarn and their sale in the market. Therefore, the Commissioner has correctly come to the conclusion that both these person were concerned with the removal of unaccounted woods, which were liable for confiscation. Therefore, the penalties were correctly imposed on them under Rule 209A of the Central Excise Rules, 1944. 7. We have considered the submissions made by both the sides. We find that on behalf of M/s. Garlon Polyfab Industries Ltd., it is contested before us that for the period of 14 months, the Commissioner has wrongly calculated the duty on taking the yield as 103.92%. However, attention of the learned Advocate was drawn to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly be modified by the Commissioner. 8. We find that there are sufficient evidences against Shri Vishal Garg and Shri Vivek Garg, therefore, they are liable for penalty. Since we are remanding back the case to the Commissioner for working out the duty liability afresh for the period for which production reports are available, the penalties on these persons may also be suitably modified by him. 9. As regards the appeal filed by the Revenue, we find that Commissioner has given the factual position in Para-49 of his order. This factual position has not be contested in the appeal. In view of the factual finding given by the Commissioner, the yield of 103.92% cannot be extended for the other period for which the evidence of suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
