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2015 (7) TMI 500 - CESTAT AHMEDABAD

2015 (7) TMI 500 - CESTAT AHMEDABAD - 2015 (330) E.L.T. 590 (Tri. - Ahmd.) - 100% EOU - non-existence of manufacturing facility - Rule 20 of Central Excise Rules, 2002 - manufacutring of goods at the premises which does not belong to assessee - whether any goods were manufactured by the Appellant at Plot No.16-17, Hari Ichcha Industrial Estate, Behind M. Jagdamba Mills, A.K. Road, Surat or not - Held that:- The statements of the proprietors of all the above units working on the date of visit wer .....

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xcise officers with respect to Appellant pre-ponderence of probability goes in favour of the Revenue that no goods were manufactured at the declared address by the Appellant. - authenticity of rewarehousing certificate and the receipt of the finished goods at the factory premises of the consignee are doubtful and cannot be considered as authentic evidences to establish that the goods were manufactured by the Appellant because the transportation of the goods from Surat to Medak (A.P.) is not esta .....

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Authorised Representative ORDER Per: H.K. Thakur This appeal has been filed by the Appellant with respect to the OIA No. RKA/46/SRT-I/09, dt.27.01.2009, under which the First Appellate Authority upheld the OIO No.29/ADC-PS/OA/2006, dt.28.12.2006, except allowing the appeal of the Appellant with respect to redemption fine as no seizure of the goods was effected by the Department. 2. Shri P.M. Dave, learned Advocate and Shri N.J. Gheewala, learned Consultant appeared on behalf of the Appellant. Sh .....

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and supplied to Asharani Garments & Fabrics Pvt.Ltd., EOU, Medak (A.P.) (for short M/s AGFPL) and that delivery of the goods given was ex-factory to the consignee. That all the ARE3 duly endorsed by the jurisdictional Central Excise officers, incharge of Medak were duly received by the Appellant regarding rewarehousing of the fabric supplied by them. The learned Advocate made the Bench go through the various annexures to the show cause notice dt.02.12.2004 issued by Hyderabad Commissionerate .....

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ase that once the rewarehousing certificates from the jurisdictional Central Excise officer, incharge of the consignee, were furnished, then there is no doubt that all the goods manufactured by the Appellant have reached the destination and no duty is demandable from the Appellant as per the provisions of Rule 20 of Central Excise Rules, 2002. It was also strongly argued by the learned Advocate that since the entire duty demand has been confirmed by the Commissioner, C & C.Ex., Hyderabad-I, .....

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king at the declared premises. That the statements of various persons working in those units clearly state that they do not know Shri Shyam Sunder Arora, Proprietor of the Appellant and that no goods are manufactured at the said premises by the Appellant. Learned Authorised Representative also made the Bench go through the statement of Shri Anil Kumar J. Saini, Excise Clerk of the Appellant indicating that the Appellant was making entries only on paper as per the directions of Shri Shyam Sunder .....

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i Dhirubhai Patel, but only one month rent was paid. 4. As a counter to the argument made by the learned Authorised Representative, Shri P.M. Dave, Advocate argued that all the persons whose statements have been relied upon, has filed affidavits to the effect that the list of the said premises was on lease for a period of 6 years as per the lease deed entered by the Appellant and Shri Dhirubhai M. Patel. The learned Advocate relied upon the following case laws to argue that in case of conflict b .....

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hcha Industrial Estate, Behind M. Jagdamba Mills, A.K. Road, Surat or not. It is the case of the Appellant that out of duty free yarn, grey fabrics was manufactured at this address and the same was supplied to M/s AGFPL. Appellant relied upon the re-warehousing certificates issued by the jurisdictional Central Excise officers incharge of the consignee and also one adjudication order, dt.29.11.2005 issued by the Commissioner, Cusoms, & Central Excise, Hyderabad-I under which the demand has be .....

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s of the proprietors of all the above units working on the date of visit were recorded under which all those persons stated that no unit by the name of the Appellant ever worked at the declared address. Shri Arora, Proprietor of the Appellant was not able to explain as to whether the goods supplied to the consignee M/s AGFPL were manufactured at the declared address. Shri Anil Kumar J. Saini, Excise clerk of the Appellant stated that the entries are made only on paper as per the direction of Shr .....

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evidence of the rewarehousing of goods. There is no evidence on record produced by the Appellant as to how the goods were transported from Surat to Medak (A.P.). The learned Advocate appearing on behalf of the Appellant has relied upon the OIO No.26/2005, dt.29.11.2005 issued by Commissioner of Customs & Central Excise. Hyderabad, under which the demand with respect to the ARE3 issued by the Appellant has been confirmed. On going through the OIO No.26/2005, dt.29.11.2005, it is observed that .....

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further observed from Para 7 of the OIO dt.29.11.2005 that several summons were issued to M/s AGFPL, but the same were not responded. In Para 18, 19 and 20 of the said OIO No. dt.29.11.2005, certain specific observations have been given by the Adjudicating authority that M/s AGFPL has floated unit exclusively with malafide intention of misusing the benefit of 100% EOU by not using duty free material procured through other EOUs against CT3 certificate and that M/s AGFPL has not manufactured any .....

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ficers with respect to Appellant pre-ponderence of probability goes in favour of the Revenue that no goods were manufactured at the declared address by the Appellant. 7. Appellant has relied upon the decision of R.P. Industries Vs Collr. Of Customs, Ahmedabad 1996 (82) ELT 129 (Tribunal) (supra) in support of their contention that the documentary evidence should be preferred over the oral statement recorded by the investigating agency. A careful reading of this order indicates that in the case b .....

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