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TMI Blog2010 (8) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... ined as under : SPL had cleared 11,41,730 sq. mtrs of man made fabrics and 10,86,502 sq.mtrs of cotton fabrics during the year 1994-95 by claiming full exemption from payment of Central Excise duty under Notification No. 297/79-C.E., dt. 24-11-79 as amended and Notification No. 253/82-C.E., dt. 8-11-82 as amended. As a result of investigation conducted, it is the contention of the department that contrary to the claim made by the appellant that they were undertaking only padding, calendaring process, the SPL were actually doing other processes also and therefore they were not eligible for exemption claimed by them. All the processing was done for M/s. Deepak Exports (DE for short), which, as per facts on record, is a unit which does not have facility for doing any machine processing and they are enjoying exemption as a hand processing unit. 3. Heard both sides. 4. Learned SDR on behalf of the Revenue submitted that even though the appellants claimed that they were undertaking padding/calendaring process, in reality , they were undertaking stentering process as well as other processes. For this purpose, he submitted that the statement of Shri Rajesh Bindal, partner of DE was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner also erred in ignoring the technical literature and opinion dt. 1-8-97 issued by Silk & Art Silk Mills' Research Association (SASMIRA) on 1-8-97, wherein it was opined that dyeing and stentering process was essential for the finishing of the fabrics and the same were integrally connected with the operation of calendaring process. He submits, while Commissioner ignored technical opinion which was a part of the record, he accepted the opinion of SASMIRA/ATIRA report dt. 27-7-98 and 14-7-98, which were addressed to M/s. Bhushan Processors Pvt. Ltd. and M/s. Priti Textiles and both these reports have been considered without calling for any comments from the investigating agency or the departmental officers and therefore the decision to accept these technical opinions without giving any opportunity to the department to consider the same is wrong. Further, he also submitted that even these reports would not be helpful since the report state that only for viscose fabrics, stentering is not required. Merchant manufacturers stated that they were sending goods directly to SPL who were equipped with bleaching, dyeing, printing, calendering, stentering machines etc. and merchant man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaching, dyeing and printing, padding, calendering, stentering etc. whereas the appeal of the department is on the ground that the appellants had taken up stentering process and stentering was not one of the process eligible for exemption. He drew our attention to the relevant exemption notification. Notification No. 253/82 exempts cotton fabrics which undergo specified processes therein and stentering is listed there. Therefore, the fact that the cotton fabrics cleared by SPL underwent stentering process, does not make a difference with regard to the cotton fabrics. As regards man made fabrics, stentering process is not covered by the exemption notification but he relied upon the information as given by SASMIRA and ATIRA that in the case of viscose fabrics, stentering is not required. In any case, it is his submission that the department had not produced any evidence to show that SPL had undertaken different processes than what was shown in the document. It was not for the SPL to produce any evidence that D3 declaration has been verified. As per statutory requirements, D3 declaration has to be filed and it was for the officers to verify. Therefore, it is for the department to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merchant manufacturer, it also would have proved that SPL was not maintaining the records properly. Further, there is not even a whisper about any omission in filing statutory declaration under Rule 173B/173C and filing RT-12 return. While the department's case in the show cause notice was that the appellant had undertaken different manufacturing processes, the appeal is mainly centering on the process of stentering alone. When it comes to stentering, in the case of cotton fabrics, the process is exempted and in the case of viscose fabrics, there is technical information that it is not must. We are unable to appreciate the contention of the department that Commissioner should have called for comments on the opinion given by SASMIRA and ATIRA in view of the fact that these two opinions were relied upon by SPL because the advocate representing SPL happened to represent the other parties to whom show cause notice were issued and in those show cause notices these opinions were referred to. Therefore, we cannot find fault with the Commissioner's relying upon these opinions. To a specific query as to whether the viscose fabrics/rayon fabric is man made fabric or not, both the sides could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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