TMI Blog2017 (9) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 12.05.2017, is considered, then also some removals would be there without payment of duty - to arrive at the exact quantum of clearance without payment of duty, applying the weight gain as 0.2%, the matter needs to be remanded to the adjudicating authority to quantify the demand - appeal allowed by way of remand. - E/3070-3072/2005-DB - 12584-12586/2017 - Dated:- 15-9-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) For the Appellant : Shri J.C. Patel, Advocate For the Respondent : Shri S.N. Gohil, A.R. (Addl. Commissioner) ORDER Per: D. M. Misra The appeal has been remanded by the Hon ble Supreme Court while disposing the Civil Appeal No. 551-561/2016 by order dated 27.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be in the range of 0.2 to 0.5%, which is supported by the opinion of various authors on the subject. Therefore, it is his contention that only the weight gain due use of oils, cannot be the basis for demanding duty, on a theoretical calculation of production and clearance of the goods. However, he has fairly accepted that at the first stage, the technical opinion submitted by them stated that there cannot be any oil gain in dyed yarn and there could be some weight loss, is incorrect. 4. Per contra, the Ld. AR for the Revenue, on the other hand, submitted that besides the technical report, there are other evidences on record by which it could be said that there was clearance of the goods without payment of duty. In this connection, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yarn used at input stage, manufacturing process and conditions and age of machineries put into use for manufacturing of finished goods. Hence, the oil gain of 4.4% is calculated on the basis of actual utilization of anti static oil as per the records maintained by the units/ stocks position during panchnama proceedings cannot be doubted. 5. Heard both the sides and perused the records. TheHon ble Supreme Court while remanding the case observed that the Revenue would be allowed to file a technical report and both parties could also be permitted to adduce further evidence to substantiate their plea. Also, it is observed that if there would be any differential quantity on the analysis of the aforesaid aspects then only the statements could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, observed that since there was removal of static oil during the process of dyeing and twisting, resulting into no Oil gain, and there was no evidence available on record to support the allegation of the Revenue, hence, the demand cannot be sustained against the appellant. The said finding was endorsed by the Hon ble High Court rejecting the Revenue's Appeal against the said Order. The contention of the Revenue before the Hon ble Apex Court was that opportunity to lead expert's opinion was not accorded to the Revenue before the Tribunal or High Court, accordingly, it resulted remand of the case. 10. There is no dispute of the fact that demand was confirmed taking into consideration the weight gain at the rate of 4.4%, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court, it is clear that the statements of the various persons cannot be considered alone, but if there would be any differential quantity, on the analysis of the aforesaid aspects, i.e. technical reports, then the said statements could be pressed into service. Considering the expert's evidences, we find that the technical report of SASMIRA, if accepted, there would be oil gain in the range of 0.2 to 0.5%, which negates the earlier Chartered Engineers certificate, the basis for setting aside the demand by this Tribunal and the High Court. In the statement of Shri Modi dated 18/19.07.2000, he has categorically admitted that textured yarn has been manufactured and removed clandestinely without payment of duty. Further, he has stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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