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TMI Blog2014 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... the main appellant situated at 105 GIDC, Vatva, Ahmedabad was also visited where a quantity of 7740 L mtrs of cotton fabrics valued at Rs 1,19,380/- was found and was admitted by Shri G P Sisodia, Authorised Signatory of the main appellant, to be received from the main appellant without any document and was to be returned to the main appellant after the specified processes. Appellant Shri N R Sabee is the General Manager of the main appellant. 3. Shri H D Dave (Adv.) appearing on behalf of the all the appellants made the Bench go through their reply dtd 2/3/1998 to the Show Cause Notice filed before the Adjudicating Authority and made the following submissions: i) That shortage of 96509 L Mtrs of cotton fabrics on the basis of lot register, involving duty of Rs 61,220/- was as a result of improper stock taking done in the factory premises of the main appellant. ii) That 7740 L/mtr of cotton fabrics seized in appellants unit at 105, GIDC, Vatva involving duty of Rs 4334.90 was accounted for in the lot register maintained by the main appellant and not properly showing the same in the records was only a procedural lapse on appellant's part without any intention to evade payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the units of the group. That all the lots tallied with the lot register maintained which should be taken as an authentic proof that the processes declared undertaken by the appellant were correct. That the names of the recipients of these fabrics were available on record and no investigation was done to approach the recipients of goods whether the fabrics received by them was hand dyes/hand screen printed or not. ix) That duty amounts of Rs 75,240.50 and Rs 37,661.25, as per annexure V to the Show Cause Notice has been demanded on the basis of a Roller Printing Register maintained by the workers. That this demand has been made on the basis of the statement of Shri Virender Mohan, Printing Supervisor of the appellant without recording as to for what purpose the said register was maintained. That demand of Rs 37,664.25 is pertaining to MMF for which main appellant has no facility as contended earlier. That this register is maintained by the workers for paying them the remuneration and one lot could be printed for more than once to get the desired print. Hence it was his case that roller printing register will never show actual quantity of cotton fabrics printed on the rotary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E - [1990(48) ELT 460(T)] e) Leather Chemical & Industries Ltd vs CCE, Calcutta [1989(15) ELT 451(T)] f) Krishna & Co vs CCE Jaipur - [1998(97) ELT 74(T)] g) Kahmir Vanaspati vs CCE - [1989(39) ELT 655(T)] xv) That in view of the above submissions the Show Cause Notice miserably fail and accordingly no penalty is required to be imposed upon any of the appellants. 4. Shri J Nagori (AR) appearing on behalf of the Revenue defended the orders passed by the Adjudicating Authority and the First Appellate Authority. He made the Bench go through Para 3.2 and 3.3 of the OIO dt 17/1/2007 and Para 9(i), (ii) to (vi) of OIA dtd 31/5/2007 passed by the First Appellate Authority. Ld AR strongly argued that cross examination of the witnesses undertaken was only an after thought after tutoring the witness under expert legal advice and that such witness were only employees of the appellant. That no retraction of the statements were made by the concerned persons till filing of reply to the Show Cause Notice on 2/3/1998, nearly 4= years after the visit by the officers on 27/7/93. That both the OIO and OIA passed by the lower authorities are well reasoned and appeals filed by the appellants shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant found in the second unit and the statements of all those who were associated with the manufacturing activity of the main appellant create a very strong suspicion that the appellant is involved in clandestine manufacturing and removal of fabrics. Above evidence are sufficient to hold that main appellant has carried out manufacturing and clandestine removal of 96509 L Mtrs and 7740 L Mtrs of cotton fabrics involving central excise duty of Rs 61,220/- Rs 4,334.90 respectively. Accordingly, demands of Rs 61,220/- and Rs 4,334.90 and confiscation of 7740 L Mtrs of fabrics seized on 27/7/93 and imposition of redemption fine of Rs 25,000/- are also justified. 5.2 However, it has to be seen whether the above circumstantial evidences, alongwith certain private records maintained by the appellants, are sufficient to hold the remaining duty demands and to establish the clandestine activities of the main appellant. So far as manufacturing of manmade fabrics by the main appellant, mentioned in Para 5(iii) is concerned, it has been argued that main appellant does not have the facility for manufacturing of man made fabrics (MMF). It is observed from Para 1 of the OIO passed by the Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, demands mentioned in Para 5(iv) above, does not survive against the main appellant. 5.4 A demand of Rs 93,942/-, as indicated in Para 5(v) above, has been confirmed against the appellant on the basis of a sample registrar found in the premises of M/s Jindal Synthetics. It is strange that Revenue is conveniently considering a record available in the premises of M/s Jindal Synthetics to be the one pertaining to the main appellant but does not want to accept that those records, found in factory premises of the main appellant, could also contain the entries of M/s Jindal Synthetics. Further no investigation seems to have been done at the end of the recipients to know the nature of these fabrics supplied. Any such follow up could have made the factual position very clear whether the fabrics were obtained from the main appellant or M/s Jindal Synthetics. Based on these observations, it cannot be held that duty calculated, as per a sample register found in the premises of M/s Jindal Synthetics, was pertaining to fabrics clandestinely manufactured and cleared by the main appellant. 6. In the light of the above observations, appeal of the main appellant with respect to duty am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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