TMI Blog2011 (4) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of limitation in respect of bought out yarn was not justified in the earlier proceedings, inasmuch as the same facts and circumstances imparting knowledge to the Revenue, were available - Decided in favour of the assessee - E/1007 to 1011/2006 - - - Dated:- 6-4-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. Shri Devan Parikh, Adv. For the Assessee; Shri I. Ahmed, SDR for the Revenue. Per: Mrs. Archana Wadhwa: Being aggrieved with the order passed by Commissioner passed in de-novo proceedings, the Revenue has filed the present appeal. We have heard Shri I. Ahmed, learned SDR appearing for the Revenue and Shri Devan Parikh, ld.Advocate appearing for the respondents. 2. As per facts on record, the respondents are engaged in manufacture of cotton yarn and cotton fabrics falling under Chapter 52 of Customs Excise Tariff Act, 1985. Their factory was visited by the officers of Cost Audit of Central Excise Commissionerate on 11.02.98, who raised various objections. It was observed that during the period from December 1994 to September 1996, the appellants had manufactured cotton yarn and consumed the same captively. The assessable value adopted by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. Accordingly, he held that the demand was hit by time bar and dropped the demand of Rs.17,96,096/- (Rupees Seventeen Lakhs, Ninety Six Thousands and Ninety Six only). However, in respect of the demand raised on the yarn purchased by the assessee from outside for captive consumption after dyeing and sizing, he held against the assessee without extending the benefit of limitation. He observed that the assessee has nowhere in his documents, declared that they were purchaseing duty paid yarn from the market and carrying out dyeing on the same. He, accordingly, confirmed the demand of Rs.77,52,053/- (Rupees Seventy Seven Lakhs, Fifty Two Thousands and Fifty Three only) as against the proposed demand of Rs.85,28,607/- (Rupees Eighty Five Lakhs, Twenty Eight Thousands Six Hundreds and Seven only) by allowing the permissible deduction on account of the Excise duty, Octroi and Sales tax etc. 4. As regards the 3rd issue of assessable value of captively consumed yarn, he held that the same has to be arrived at on the basis of cost structure and not on the basis of comparable goods. He, accordingly, after rejecting the assessee s stand on the above grounds as also their plea of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the goods manufactured by the respondent were comparable with the goods of M/s Soma Textiles. It stand contended that the quality of the yarn may differ in various technical parameters such as raw material quality, twist per inch in yarn, strength of the yarn and evenness of the yarn, though the count remains the same. As regards applicability of the Board s circular, it stand contended that the said circular stipulated that the cost of production of captively consumed goods be calculated henceforth in accordance with CAS-4 for non-inclusion of overhead expenses not related to the production. Accordingly, it stand pleaded that the word henceforth suggest that the said circular has prospective applicability whereas in the instant case, the demand pertains to the period prior to issuance of said circular. 8. We do not find any merits in the above contention of the Revenue. Admittedly, the Commissioner has taken into account the cost of the yarn of same count being manufactured by M/s Soma Textiles. Reference by Revenue to the various technical parameters is only an expression of doubt inasmuch as it stands pleaded that warping of the yarn may differ. There is no submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee s manufacturing unit on 28.7.95 and verified the description of the product stated, the manufacturing process and have satisfied myself about the correctness of the classification and applicability of the exemption notification declared hereinabove. As such, he has concluded that the assessee s activities were in the knowledge of the Revenue and there cannot be any suppression of fact regarding manufacturing, dyeing of yarn used captively which was either of their own manufacture or purchased from outside and mere non-filing of price declaration cannot lead to suppression of fact. He has also noted that internal audit party s as well as AG(Audit) party had conducted the audit of records maintained by them and all details were furnished to them. As against the above contention of the Commissioner, Revenue has contended that it is nowhere on record that the said assessee had brought forth the facts of buying yarn from outside and dyeing the same for further captive consumption in their monthly return. As such, it is their submission that the extended period is available to the Revenue. 10. Though we do not find any infirmity in the view adopted by the Commissioner as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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