TMI Blog2018 (4) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... that All these dyed yarn is manufactured by M/S DTPL, Tarapur and supplied to M/s. DPPL, Silvassa - Held that: - there is barely any evidence to support the allegation that M/s DPPL, Silvassa, had supplied this quantity of yarn to M/s DPPL, Tarapur, and received back the dyed yarn from DTPL, Tarapur - Revenue has relied upon the statement of Security Personnel who had joined barely 8 days before his statement was recorded. Revenue is seeking to rely on his statement for period long before he had joined the organization. In these circumstances the statement of the security supervisor cannot be relied. Revenue has failed to substantiate the allegations on numerous counts - Demand has to be set aside - appeal allowed - decided in favor of appellant. - E/61, 62, 75 to 77/2009 - A/85888-85892/2018 - Dated:- 23-3-2018 - Shri Ramesh Nair, Member (Judicial) And Raju, Member (Technical) Singhania And Kamal S Singhania versus Commissioner of Central Excise, Thane - II Shri Prakash Shah, Advocate for the appellants Shri Ajay Kumar, Addl. Commissioner (AR) for the respondent Per: Raiu These five appeals are filed by M/S Detco Textiles Pvt Ltd, Shri Ramesh Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch of the premises of M/S. Purohit Clearing Agency apart from recovery of certain registers balance of 727.67 kgs of texturized dyed yarn and 538.63 kgs of twisted yarn was seized. Further, 538.63 kgs. of seized twisted yarn was released on 10/02/2001. 3. Statement of Shri Birbal Singh, Godown Keeper of Purohit Clearing Agency, Bhiwandi was also recorded. In his statement he confirmed that he was receiving yarn from M/S DPPL, Silvassa. He stated that they had entered the details of the textiles yarn/twisted yarn received from M/S DPPL, Silvassa in their register withdrawn at serial No. 26 of Annexure 'A' to panchanama dated 04/01/2001. He pointed out that the details like lorry No., date, LR No., Challan No. , number of cartons received, quantity of texturized yarn, net w and lot No. were recorded in the said register. He further pointed that the they were also receiving dyed yarn from M/S DPPL, Silvassa since September 1999 and entered the details of the receipt of yarn from M/S DPPL, Silvassa in a separate register at serial No. 31 and 28 to Annexure 'A' to panchanama dated 04/01/2001. He further stated that M/s DPPL, Silvassa cleared the dyed yarn through W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarapur for the purpose of dying of metal springs and the said yarn after dying from Tarapur was received back for the purpose of coning on departure tubes at M/S DPPL, Silvassa. Final sale of dyed yarn was done from Silvassa. He confirmed that M/s DPPL, Silvass , send yarn for dying only to M/S DTPL, Tarapur and not to any other party. He further clarified that the movement of goods between M/S DPPL, Silvassa and M/S DTPL, Tarapur was done on job-work basis but after clearance of yarn on payment of duty the dyed yarn was packed in bail box and cartons at the time of dispatch to Silvassa. 5. Statement of various dyers of yarn were also recorded wherein they stated that they received dyed yarn through M/S Purohit Clearing Agency. Shri Tushar Chaganlal Haria, Proprietor of M/S. Tushar Textiles Pvt Ltd admitted that they purchased dyed yarn from M/S DPPL, Silvassa, through Shri Ramesh Todi and got delivery of the dyed yarn from M/S Purohit Clearing Agency after showing the copy of delivery-order-cum-challan. He further pointed out that all goods mentioned against the names of Mangal Tex, Haria Tex, Ramesh Tex and Bajarang Tex mentioned against the entries were received by them. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt that the said study was conducted in the presence of the Director. Learned Counsel pointed out that the document relating to said study do not record presence of any Director. 8. Learned Counsel further relied on the argument that the Revenue has relied solely on the records of Purohit Clearing Agency who claimed that they have received non-dyed and dyed yarn. He pointed out that even non-dyed yarn was detained at the premises of Purohit Clearing Agency. However the same was released and not seized as the same was duty-paid. He further argued that they had sought cross-examination of Birbal Singh of M/S Purohit Clearing Agency as Revenue had heavily relied on his statement. However, the same was denied. He drawing attention to the statement of Shri Balbir Singh which was very important for Revenue's case as Revenue has relied on the assertion made by Shri Balbir Singh that the yarn entered in Register in Rule 28 and 3 1 is dyed yarn. 9. Learned Counsel further argued that everything entered in the Register 28 and 31 is shown as dyed yarn. He argued that whenever dyed yarn has been received in Purohit Clearing Agency register clearly indicates dyed by letter 'D' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded in Register Nos. 28 and 31 recovered from their premises during search on 04/01/2001 13. We have carefully gone through rival submissions. Allegations on M/S DTPL, Tarapur, is that they were clandestinely receiving texturized yarn from M/s DPPL, and after dying the same and sent it back to M/s DPPL, Silvassa. The evidence to allege this modus operandi is essentially the record of the Godown Keeper of M/S Purohit Clearing Agency. There is no allegation whatsoever that the goods received in the godown of M/S Purohit were received from M/S DTPL, Tarapur. The allegation itself is that M/S DTPL, Tarapur were sending the goods after dying to M/S DPPL, Silvassa, who were subsequently clearing the goods to various traders through Purohit Clearing Agency. To establish Revenue's case they need to establish (i) All the goods cleared by them were recorded in Register 28 and 3 1 of Purohit Clearing Agency and are dyed yarn (ii) All these dyed yarn is manufactured by M/S DTPL, Tarapur and supplied to M/s. DPPL, Silvassa. 14. We find that, on the first count Revenue has essentially relied on the statements of the Godown Keeper, Shri Balbir Singh, to say that the entire yarn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said report to counter the claim of the appellant that their production capacity is much lower than the alleged production. Moreover the report shows that the dying machine has to operate at the capacity of 125% for 26 days a month round the clock for three years at a sfretch to justify the alleged production and clandestine clearance. It is an unbelievable claim in itself. 16. We also find that there is barely any evidence to support the allegation that M/s DPPL, Silvassa, had supplied this quantity of yarn to M/s DPPL, Tarapur, and received back the dyed yarn from DTPL, Tarapur. The sole evidence relied upon is alleged heavy movement of the vehicle between the Tarapur and Silvassa units. It is seen that the Revenue has alleged that the number of trips of vehicles to Tarapur is much higher than the number of trips of vehicle from Tarapur to Silvassa necessary to move the job work shown on record. Normally, one would expect that if the yarn is sent by M/S DPPL, Silvassa unit to Tarapur unit and received back to Tarapur unit then number of vehicles between both directions would be practically identical. Moreover, there is no evidence regarding transportation of yarn from DTPL, Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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