TMI Blog2017 (7) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of payment of differential duty in the case of final assessment, if there are findings that selling price declared by the merchant manufacturers are incorrect. The Revenue's case in this appeal is not that the selling price was incorrect. In view of this, this argument of the appellant also fails. The test results of the samples would be applicable only to those consignments wherein the samples were drawn - the findings recorded by the adjudicating authority while dropping the demands, raised by holding that there are no test reports to confirm that the goods were manmade fabrics, are correct and legal. Appeal dismissed - decided against appellant. - E/389/2006 & E/110/2007 - A/30933-30934/2017 - Dated:- 12-6-2017 - Mr. M.V. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempts cotton fabrics while subjected to processing like bleaching, mercerising etc. After due process of law adjudicating authority out of the total demand towards additional duties of excise confirmed a demand of ₹ 44,34,402/- along with interest and dropped the balance demands. No penalties were imposed relying on the decision of the Apex Court in respect of the same issue. Assessee is aggrieved by the said confirmation of demand of ₹ 44,34,402/- and is in appeal in Appeal No. E/389/2006 while Revenue is aggrieved by the impugned order on the ground that the adjudicating authority has erred in dropping the proceedings of the balance amounts. Since both the appeals are in respect of the very same issue and against the same Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is nothing on record to show that the appellant received any excess payment; having filed declaration claiming exemption from licensing control under Central Excise is not a mere procedural or formalities as held by the Apex Court in the case of Eagle Flask Industries Ltd., [2004 (171) ELT 296 (SC)], consequently deficiency if any or contravention is to be attributed to merchant manufacturers and not on the appellant. It is his further submission that the title of the processed fabrics is always with the merchant manufacturers in as much they purchase the grey fabrics, transport the same to appellants factory and subsequently sell in the market the processed fabrics was dispatched by appellant. Hence, appellant can be at the most held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rics by claiming an ineligible exemption. While it is the case of the appellant that the samples which were drawn by the authorities do not match with the lot register maintained by the appellant in the factory premises and there is no evidence indicating that there was clandestine manufacture and removal of manmade fabrics. 7. On the appeal filed by the appellant assessee, we find that the adjudicating authority in the impugned Order-in-Original clearly brought on record that the samples which were drawn at various places, approximately 170 in numbers including the samples drawn from the appellants premises, were sent for test with the Deputy Chief Chemist. The analysis report of the Deputy Chief Chemist clearly indicated that the sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities of processing undertaken by the appellant amounts to manufacture and any processor who undertakes such processing activity is the manufacturer and central excise duty is payable on manufacturing activity. Coming to the argument that the merchant manufacturers have given a declaration, we find that the said declaration as per the Notification No.305/77 is only in respect of payment of differential duty in the case of final assessment, if there are findings that selling price declared by the merchant manufacturers are incorrect. The Revenue's case in this appeal is not that the selling price was incorrect. In view of this, this argument of the appellant also fails. 9. As regards the appeal filed by the Revenue, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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