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TMI Blog2017 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ory without payment of duty could not be sustainable as the appellants do not have the capacity to manufacture the said quantity of goods alleged to have been cleared. Accepting the said plea of the appellant, this Tribunal remanded the matter observing as follows: "The impossibility or probability of such a high percentage of yield, on the said machine was a factor which go to the root of the charge of unaccounted production and clearance. The Commissioner has only found unsustainable reasons to reject the Certificates and has not arrived at any findings independently, of his own as to how the production in such large excess could be emerging from the said machines installed. Such orders requested to be set aside and returned back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er units. It is his contention that the Ld Commissioner erred in not considering the said request and proceeded with the de novo adjudication on the basis of records available. He submits that therefore, the case may be remanded to the Adjudicating Authority to take into consideration the production of similar make machines, installed in other premises and decide case accordingly. 5. Per contra, the Ld AR for the Revenue submitted that the Ld Commissioner after affording an opportunity to the appellant, pursuant to the direction of this Tribunal decided the case on merit on the basis of evidences available on record as the appellant had expressed their inability to make available the machines installed in their factory for determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, and thereafter to proceed to determine the alleged removal of goods on the basis of evidences available on records. Since the appellant could not make available the machines for trial run, the Ld Commissioner proceeded with the evidences available on record and confirmed the demand accordingly as directed by this Tribunal. The Ld Commissioner recorded its findings as follows: " The notice vide their defence submission dated 13.12.2007 has requested deputing any officer at any factory having same machine to verify the production capacity. During personal hearing they showed their inability to run the same machine ie., HIMSON Scragg Draw Textursing Machine, Model SDS-3, with 144 Spindle, as the said machine is in junked condition and coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where on any machine and proceed to decide the case based on evidence available on records." 8. We find that Tribunal has specifically directed after hearing both sides to carry out trial run to ascertain the capacity of production of the machines installed in the factory premises of the appellant. The appellant, before this Tribunal has accepted the said order and also later did not approach the Tribunal in making a plea of unavailability of machines for trial run. In these, circumstances, we do not see any reason to disagree with the findings of the Ld Commissioner, who has rightly held that determination of production capacity of machines installed in other premises would be a futile exercise, as it could not give a correct picture of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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