TMI Blog2019 (4) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ner further observed that the Department / Adjudicating Authority without causing any investigation from the buyers/transporters to verify the entries made in the said register to ascertain Respondent’s contentions that the register cannot be relied as the same contained the entries in respect of cancelled gate passes against which no sales were effected, returned goods and trade samples held that the Department has failed to prove its case. There is no dispute that the gatekeepers / security staff were contractual persons employed by security contractor. The register maintained by them was not under the instructions of the Respondent assessee and the said register was not supervised and/or scrutinized by the Respondent assessee. Thus, there is nothing wrong in the Commissioner’s observation that confirmation of demand relying on those registers was incorrect. The Revenue’s contention on this count also is unimpressive and merits rejection. There is no allegation that the Respondent cleared any material without raising invoices but only charge is that the goods cleared as knitted garments or fabric were in fact non-knitted garments and that Respondents wrongly claimed some e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongly concluded that the Adjudicating Authority has confirmed the demand merely on assumption and presumption and there is no evidence whatsoever to support these findings. The Commissioner (Appeals) has not taken into the various evidences and corroborations taken on record in the Order-in-Original. (ii) The Commissioner (Appeals) has not taken into account the admission by Harsh Kumar, partner of the party, in his voluntary statement dated 18.02.2003, that whenever knitted jackets were cleared, they mentioned the words knitted in their invoices, whereas for woven jackets only wrote the description as jackets . This admission has been altogether ignored in the Order-in-Appeals. (iii) The Commissioner (Appeals) has also failed to take into account earlier admissions of garments as woven and the change in stance by the party without proof. (iv) The Commissioner (Appeals) has also erred in holding that the demand on readymade garments clandestinely cleared was wrongly confirmed based on their outgoing register which was common to 3 factories. The Commissioner (Appeals) has ignored the vital fact that the outgoing register tallies with the admitted clearances of the party. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll dated 30.04.2001. The benefit of SSI excise duty exemption scheme was extended to the ready made garments of Ch.62 of the tariff under Notification No. 8/2001-C.E. (as amended) and 9/2001-C.E. (as amended) both dated 01.03.2001. Whereas, the tariff valuation @ 60% of the retail sale price was fixed for the articles of apparels and clothing accessories, not knitted or crocheted falling under heading 6201 and 6202 of the First Schedule to the Central Excise Tariff Act, 1985 under Notification No. 8/2001-Central Excise (N.T) dated 01.03.2001 as amended. The effective rate of Central Excise duty on the articles of apparels and clothing accessories, not knitted or crocheted falling under heading 6201 and 6202 of the First Schedule to the Central Excise Tariff Act, 1985 was @ 16% (Tariff rate) from 01.05.2001 to 28.02.2002 and @ 12% under Notification No. 15/2002-Central Excise dated 01.03.2002, w.e.f 01.03.2002. 6. We also find that in the present case, there is no dispute regarding value of the clearances effected by Respondent Assessee, Octave Apparels, and the only dispute is regarding bifurcation of these clearances into knitted garments and non-knitted garments. The Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o detailed and exhaustive and cannot be construed as entries made by some illiterate gatekeepers / security staff and the same being co-relatable with. In the present Appeal, Revenue has taken a ground that the entries in the said register largely tallied with the clearances of the Respondent assessee and hence rejection of the same by the Commissioner was wrong. 6.3 We find that the Commissioner (Appeals) in this regard observed that the Department had all the details of goods cleared from the Respondent s premises viz name of buyer, quantity of items sold, mode of transportation and there was nothing to record to show that any investigation was made form the buyers of the goods or the transporters to substantiate the allegation of clandestine removal. The Commissioner further observed that the Department / Adjudicating Authority without causing any investigation from the buyers/transporters to verify the entries made in the said register to ascertain Respondent s contentions that the register cannot be relied as the same contained the entries in respect of cancelled gate passes against which no sales were effected, returned goods and trade samples held that the Department has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. We are of the considered opinion that Revenue s contention is devoid of merit, as from the Show Cause Notice and Order-in-Original, it is evident that before relying on the entries in the said register Department did not cause any inquiry from the buyer/recipient of the goods or transporters though all the details were available to them. At the cost of prolixity, we observe that there is no allegation that the Respondent cleared any material without raising invoices but only charge is that the goods cleared as knitted garments or fabric were in fact non-knitted garments and that Respondents wrongly claimed some entries to be those related to return of goods or clearance of samples. In our considered opinion, without any investigation from buyers of the goods or transporters to conclusively ascertain that goods were knitted or non-knitted and to verify the veracity of the Respondent s claim in respect of return of goods / clearance of sample confirmation of demand on the basis of outward register that too not maintained by the Respondent s office but by the Security personnel engaged by security contractors cannot be sustained. 6.6 We further find that the Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
