TMI Blog2022 (4) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... XMI ENGG. WORKS [ 2001 (8) TMI 162 - CEGAT, NEW DELHI] has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld. The department apart from the Kachcha Delivery Challan seized from the Appellant s premises and statement of partner and supervisor has not been able to give any independent evidence which can corroborate the charges. No statement of alleged buyers to whom the impugned goods were cleared recorded by the department. The Appellant has placed reliance upon various judgments to canvas their point that in absence of corroborative evidence no demand can be made - it is also found that apart from the alleged shortages, there is virtually no other evidence on record to reflect upon the clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands. The entire case of the Revenue is based upon the surmises and conjectures. No concretes positive and tangible evidence appears on record. The evidences brought into the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Grey Fabrics during the period from 05.05.2003 to 14.05.2003 to M/s Uma Textiles Processors (100% EOU), without payment of duty against the CT-3 as deemed export. Statement of Chandresh Kishan Bhai Dhandha, Proprietor of M/s Uma Textiles Processors was recorded wherein he stated that they had received Polyester Grey Fabrics from the Appellant against the CT-3 and they never received Knitted Grey Fabrics from the appellant. The appellant unit was not having facility to manufacture Polyester Grey Fabrics. Therefore, it appears that the Appellant had sold 3,04,463.50 L. Mts knitted fabrics, manufactured from duty free imported/ indigenous raw materials procured under various CT-3 and shown to have been cleared to M/s Uma Textiles Processors in their stock account were illicitly sold in the domestic market without payment of Central Excise Duty leviable thereon and for fulfilling of export obligation in respect of the said Polyester Knitted Fabrics Appellant supplied 3,04,463.50 L.Mts of Polyester Grey Fabrics by procuring from the market as appellant was not having facility to manufacture the Polyester Woven Grey Fabrics and received the re-warehousing certificates for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 28AB of the Customs Act, 1962 (ix) Interest at the appropriate rate, in respect of the Central Excise Duty mentioned at (i),(iv) and (vii) mentioned above under Section 11AB of the Central Excise Act, 1944. (x) Confiscation of 7,905.350 Kgs of Indugenous Polyester Texturised Yarn valued at ₹ 5,05,943/- and 3,04,463.50 L Mtrs of Polyester Knitted Grey Fabrics valued at ₹ 66,98,197/- under Rule 25 of the Central Excise Rules, 2002 and impose collective redemption fine of ₹ 7,50,000/- under Section 34 of the Central Excise Act, 1944. (xi) Confiscation of 1592.090 Kgs. of imported Viscose Yarn valued at ₹ 1,99,012/- and 42,939.060 Kgs. of imported Polyester Spin yarn valued at ₹ 29,62,796/- illicitly sold without payment of Customs duty, under Section 111(j) and 111(o) of the Customs Act, 1962 and impose the redemption fine of ₹ 3,00,000/- collectively under Section 125 of the Customs Act, 1962. (xii) Impose penalties of ₹ 1,44,699/-, ₹ 44,17,125/-, ₹ 37,72,323/- under Section 11AC of the Central Excise Act, 1944. (xiii) Impose penalties of ₹ 83,754, ₹ 17,94,129/-, ₹ 16,12,094/- ₹ 1,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 1962)., within the normal period of limitation of one year nor the extended period of limitation of Five years, the duty demands are barred by time and on this ground itself, the entire impugned Order-In-Original is liable to be set aside. He placed reliance on the decision of the Hon ble Bombay High Court in the case of DharampalLachand Chug Vs CCE 2015(323) ELT 753 (Bom), Benu Prabhakar Vs CCE 2021 (11) TMI 553 /2022-TIOL-10-CESTAT-DEL and Ram Nivas Singh Contractor Vs CCE 2019 (24) GSTL -451. 2.2 On merits he submits that the allegation and finding of illicit clearances of the raw materials found short are based on statement dated 12.06.2003 of Appellant s Supervisor Salim Abdulla Naviwala and Appellant s Partner, Asif Aman Bagad and Kachcha Delivery Challan recovered from the factory. The said Statements are not admissible in evidence since none of the said two persons had been examined during the adjudication proceeding as required by Section 138B of the Customs Act 1962 (Section 9D of the Central Excise Act 1944). He placed reliance on the decision Basudev Garg Vs CC- 2013(294) ELT 353 (Del) and Hi Tech Abrasives Ltd. Vs CCE -2018 (362) ELT 961. 2.3 He also submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication proceeding under Section 9D of the Central Excise Act 1944 and thereby the Appellants have been denied the opportunity of cross- examining him. In the circumstances, Central Excise Duty demand on 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics and Customs duty demand on imported raw materials and Central Excise Duty on indigenous raw material used in manufacture of said 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics, are clearly untenable in law. 2.5 Without prejudice, he also submits that in any event, it is settled law as laid down in following Judgments that once duty is demanded on the finished goods, there cannot be a duty demand in respect of the raw materials used in the manufacture of the finished goods. (i) CCE Vs Sanjari Twister 2009 (235) ELT 116 maintained in Commissioner Vs Sanjari Twister 2010(255) ELT A15(SC) (ii) Dupont Synthetics Pvt. Ltd. Vs CCE 2010(259) ELT 408 (iii) Asia Metals Vs CCE 2015 (328) ELT 152 (iv) VandeviTexturixers Vs CCE 2007 (220) ELT 289 (v) Abubakar Ismail Kapadia Vs CCE -2019 (369) ELT 1003 Therefore, duty demands on the imported and indigenous raw materials used in manufacture of said 3,04,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCE v. Luxmi Engineering Works as reported in 2001 (134) E.L.T. 811 (Tri.-Del.), has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld. The said decision was upheld by Hon ble High Court of Punjab Haryana as reported in 2010 (254) E.L.T. 205 (P H), laying that even if some records recovered during raid and corroborated by some supportable evidence for attempt of clandestine production and removal, it is necessary to have some positive evidence of clandestine production and removal. 4.1 The department apart from the Kachcha Delivery Challan seized from the Appellant s premises and statement of partner and supervisor has not been able to give any independent evidence which can corroborate the charges. No statement of alleged buyers to whom the impugned goods were cleared recorded by the department. The Appellant has placed reliance upon various judgments to canvas their point that in absence of corroborative evidence no demand can be made. We find that no corroborative evidence has been stated in show cause notice in the form of transporta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenePaks Ltd. v. CCE, Bangalore-I (supra), wherein the facts of the case are as under :- 2. The relevant facts that arise for consideration are appellant-company herein are manufacturers of HDPE/PP, woven fabrics, sacks. The appellant-company availed Cenvat credit of the duty paid on HDPE/PP granules purchased from various manufacturers like M/s. GAIL; M/s. Reliance Industries Ltd; M/s. HPCL etc. The officers of the DGCEI visited their factory and carried out various investigations. First show cause notice dated 4-7-2003 was issued directing one of the appellant-company herein to show cause as to why the 323 bags of plastic granules seized in the godown of M/s. Mahalakshmi Plastics be not confiscated. Further, investigations were carried out by the authorities and statements of various persons like the officers, directors of the company and also the suppliers of raw materials were recorded. Investigations culminated in issuance of show cause notices which summarises the contraventions, main allegation being, that the appellants had contravened the provisions of Rule 57A/57AB of the Central Excise Rules, 1944 and Rule 3(4) of the Cenvat Credit Rules, 2001-2002 inasmuch as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee . and thereafter the Hon ble Gujarat High Court has held that the confessional statement of an accused in criminal offence which cannot be par with the statement recorded during preventive checks, therefore, the Hon ble High Court has set aside the charge of clandestine removal. 9 . We also find that in the case of Mahavir Metals Industries v. CCE Cus., Daman, Vapi (supra), this Tribunal further held as under :- 7. I further note that my learned brother has also recorded that in absence of any specific evidence to support the clandestine removal of the quantity, it is necessary that the details given by the appellant subsequently are considered and commented upon. While agreeing with my learned brother that there is no specific evidence to uphold the finding of clandestine removal, the remand of the matter for re-calculatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show clandestine manufacture and clearance of the goods. Such cases are required to be established beyond doubt on the basis of concrete and positive evidences. We accordingly set aside the impugned order and appeals are allowed with consequential relief. 17. My view as regards there cannot be allegation of clandestine removal unless there is an evidence to indicate that there was clandestine manufacturing, is fortified by the judgment of Hon ble High Court of Gujarat in the case of Nissan ThermowarePvt. Ltd., wherein their Lordship have held as under : 7. Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord by the Adjudicating Authority or the inspecting team, therefore, relying on the said decision cited hereinabove, we hold that charge of clandestine removal is not sustainable in the absence of any corroborative evidence to the statement of Shri Baldev Singh, Managing Director. 12 . In these circumstances, we set aside the impugned order and allow the appeals filed by the appellants with consequential relief. In case of TGL Poshak Corporation Vs. CCE 2002 (140) ELT 187 (TRI), the tribunal held as under : 5. Heard Ld. SDR, Shri G.S. Menon, who reiterates the departmental view. He contends that there are statements and several registers maintained by the party which clearly indicated that they had manufactured and cleared the goods. He refers to the evidence which was culled out by the investigating agencies which clearly showed the manufacture of vanaspati during the period in question. He submits that the Commissioner has not given details on the evidence and therefore matter has to be readjudicated by taking into consideration the evidence which is already noted by him in his order. He also refers to the grounds of appeal which are reproduced below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of note books maintained by some workers. The facts in the case of Aswin Vanaspati Industries would be identical to the facts herein as in that case also the allegation was with regard to removal of Vanaspati based on the inputs maintained. The Tribunal went in great detail and have clearly laid down that unless department produces evidence, which should be clinching, in the nature of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. A similar view was expressed by the Tribunal in the other judgments noted supra. The citations placed would directly apply to the facts of this case. Hence, following the ratio of the cited judgments, the assessee s appeal is allowed. 7 . Insofar as the Revenue s grievance on the Commissioner s dropping the proceedings is concerned, we notice from the extracted portion of the Commissioner s order that Commissioner has duly considered the note books relied upon by the department that they are not in the nature of purchase and removal of goods which was only certain balance sheets and certain priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of C.Ex Cus., Raipur held that : 9.5 Undoubtedly, the proceedings are quasi criminal in nature because it results in imposition of not only of duty but also of penalty and in many cases, it may also lead to prosecution. The provisions contained in Section 9D, therefore, has to be construed strictly and held as mandatory and not mere directory. Therefore, unless the substantive provisions contained in Section 9D are complied with, the statement recorded during search and seizure operation by the Investigation Officers cannot be treated to be relevant piece of evidence on which a finding could be based by the adjudicating authority. A rational, logical and fair interpretation of procedure clearly spells out that before the statement is treated relevant and admissible under the law, the person is not only required to be present in the proceedings before the adjudicating authority but the adjudicating authority is obliged under the law to examine him and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. Therefore, we would say that even mere recording of statement is not enough but it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of the Director could not be treated as relevant piece of evidence nor could be relied upon without compliance of Section 9D of the Act. The two questions of law accordingly, stand answered in that manner. 4.4 Similarly in the matter of Basudev Garg Vs Commissioner of Customs reported at 2013(294) ELT 353 (Del.) the Hon ble Delhi High Court held as under : 9 . We have considered both the aspects of the matter and have heard counsel of both sides. The learned counsel for the appellants have placed reliance on the decision of the Supreme Court in the case of Swadeshi Polytex Ltd. v. Collector reported in 2000 (122) E.L.T. 641 (S.C.) as well as on Lakshman Exports Limited v. Collector of Central Excise reported in 2002 (143) E.L.T. 21 (S.C.) for the proposition that whenever any statement is relied upon by the Revenue, an opportunity of cross-examining the maker of the statement should be given to the Noticee. Learned counsel for the appellants also placed reliance upon a decision of a Division Bench of this court in the case of J K Cigarettes Ltd. v. Collector of Central Excise reported in 2011 (22) S.T.R. 225 (Del.) = 2009 (242) E.L.T. 189 (Del.). 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution for an offence under this Act, the truth of the facts which it contains, - (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable or (b) When the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. It is apparent that both the provisions are identical. 13. This court while upholding the validity of Section 9D of the Central Excise Act, 1944 interpreted its provisions as under :- 12. Bare reading of the above section manifests that under certain circumstances, as stipulated therein, statement mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted. 15 . The observations and conclusions arrived at by the Division Bench in the case of J K Cigarettes Ltd. (supra) would apply with equal vigour to the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. 4.7 In view of above, we find that no demand is sustainable merely on the basis of shortage and statements of persons, who have not been examined in chief during the adjudication, we find no justifiable reason to uphold the said demands. The same is accordingly set aside along with setting aside of penalty on the said count. 4.8 We also find that in the present case demand was also confirmed against the Appellant in respect of clearances of 3,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory books accounts of the Appellant. 4.9 We, further find that in support of their contention department nowhere produced any corroborative evidence to show that the Appellant has cleared 3,04,463.50 L. Mtrs of Polyester knitted Grey Fabrics illicitly in domestic market and to adjust the stock, Polyester Grey Fabrics were purchased from the market and supplied against the CT-3 to Uma Textiles Processors. No statement of any buyer recorded to whom clearance was made, no transportation details provided, no evidence of any receipts of payment from domestic buyers produced, no statement of supplier of alleged Polyester Grey Fabrics produced, not a single buyer from domestic market produced by the department to show that the Appellant has cleared illicitly alleged quantity of Polyester Knitted Grey Fabrics to them and purchased the alleged quantity of Polyester Grey Fabrics . Therefore, in the given set of facts and in absence of any adverse evidence, it cannot be said that the 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics were illicitly cleared in domestic market and to adjust the stock, polyester Grey Fabrics were purchased from market and supplied against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and the Revenue has to prove the same beyond doubt. The reference is answered accordingly. 4.10 In the matter of M/s. Sakeen Alloys Pvt. Ltd. v. C.C.Ex. 2013 (296) E.L.T. 392 (Tri.) which was upheld by the Gujarat High Court [2014 (308) E.L.T. 655 (Guj.) and subsequently by the Hon ble Supreme Court reported at [2015 (319) E.L.T. A-117 (S.C.)]. The Tribunal held that :- 5 . We have carefully gone through the rival submissions and perused the records. In this case, the case of clandestine removal has been made out against the appellant M/s. Sakeen Alloys Pvt. Limited on the basis of records/pen-drive recovered from the business premises of M/s. Sunrise Enterprises. In the statements of Managing Director and the Excise persons of M/s. Sakeen Alloys Pvt. Limited and Shri Mukeshbhai V. Patel of M/s. Sunrise Enterprises it has been admitted that they have clandestinely manufactured and cleared CTD/round bars but they have retracted their statements immediately after recording the statements. It is the case of the appellants that request for cross-examination of the persons whose statements were recorded has not been made available to them by the adjudicating authority. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to establish that clandestinely removed goods have reached to the buyers and they have confirmed to have received such goods. Appellants herein have filed affidavits from some of such buyers which the adjudicating authority has not accepted. It would have been in the interest of justice to call some of these purchasers for cross-examination so that true picture of the entire activities undertaken by the appellants was made clear. Appellants also requested for cross-examination of the Chartered Engineer who gave them the certificate regarding manufacturing capacity and consumption of electricity. 8 . In the cases relating to clandestine removal of excisable goods, following are the indicators of clandestine removal activities by a manufacturer :- (i) Excess stock of raw materials found in the factory premises. (ii) Shortage of raw materials in the records of manufacturer. (iii) Excess/shortage of manufactured goods found in the factory premises. (iv) Excess consumption of electricity/power used in the manufacture of finished goods. (v) Any transit seizure of clandestinely removed goods made by the investigating authority. (vi) Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee asked for cross-examination then if such cross-examination is denied, the department cannot make such statements as the basis for concluding that there was clandestine removal. It is further observed that the Hon ble CESTAT in the case of Rama Shyama Papers Limited v. CCE, Lucknow [2004 (160) E.L.T. 494 (Tri.-Del.)] came to the following conclusion in Paras 9 and 10 of the judgment which are reproduced below :- 9. We have considered the submissions of both the sides. The Revenue has charged the Appellants with clandestine manufacture and removal of paper mainly on the basis of documents seized from the premises of Chitra Traders and Transporters and the various statements recorded from the Proprietor of Chitra Traders, transporters and labourers working in the factory of the Appellants and also the driver or cleaner of the Truck which was in the process of loading on 22-6-2001 when the Central Excise Officers visited their factory premises. The Appellants, on the other hand, have contended that most of the persons whose statements have been relied upon have not been produced for cross-examination and the documents seized from third parties premises have not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplier Company, held that no presumption on the basis of uncorroborated, uncross-examined evidence of B.M. Gupta and the alleged entries made by him in the private diary, loose sheets, charts, packing slips could be drawn about the receipt of polyester yarn by the Appellants from the company, M/s. HPL, in a clandestine manner during the period in question. Similarly, no inference could be legally drawn against the Appellants of having manufactured texturised yarn out of the said polyester yarn and the clearance thereof, in a clandestine manner without the payment of duty. The Tribunal had also referred to the decision in Oudh Sugar Mills Ltd. v. Union of India, 1978 (2) E.LT. (J172) wherein the Apex Court has observed that no show cause notice or an order can be based on assumptions and presumptions. The findings based on such assumptions and presumptions without any tangible evidence will be vitiated by an error of law . The Tribunal also took note of the decision in Kamal Biri Factory and Shri Khushnuden Rehman Khan v. CCE, Meerut - 2003 (161) E.L.T. 1197 (T) = 1997 (23) RLT 609 (CEGAT) wherein view has been taken that the allegations of clandestine removal of the goods will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these Customers who ultimately received the goods. There is no substance in the reasoning given by the Commissioner in the impugned order to the effect that as the party did not challenge the fact of their business association with M/s. Chitra Traders, Delhi, the enquiry further down the line was not considered necessary. The onus of proof that the goods were removed by the Appellants without payment of duty and without entering the same in their records is upon the Revenue which cannot be discharged merely on the strength of the entries made in the records of a third party without linking the removal of goods from the premises of the Appellant-company. The mere fact that the Appellant-company had business relation with Chitra Traders, does not mean that they will be liable to each and every entry made by Chitra Traders in their books of account. It is also noted that none of the transporters and none of the labourers whose statements have been relied upon by Revenue have mentioned that the goods in question were delivered to Chitra Traders from the premises of the Appellants. The material brought on record may at the most create a doubt only. But doubt cannot take the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stock yard of M/s. Sunrise Enterprise, then it is possible that out of such goods certain quantities were sold to various customers by accepting payment in cash. In such a situation, the quantification undertaken by the investigation becomes doubtful and incorrect. For this purpose cross-examination of the person Incharge looking after the records of M/s. Sunrise Enterprise was must, which was not allowed by the adjudicating authority. In view of the above observations, the demand of duty of ₹ 1,85,10,861/- is not sustainable and is required to be set aside. 4.11 We also find that Tribunal in the case of CCE v. Luxmi Engineering Works as reported in 2001 (134) E.L.T. 811 (Tri.-Del.), has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld. The said decision was upheld by Hon ble High Court of Punjab Haryana as reported in 2010 (254) E.L.T. 205 (P H), laying that even if some records recovered during raid and corroborated by some supportable evidence for attempt of clandestine production and removal, it is necessary to have some pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate and the appellant s clearances are covered by CT-3 is not chargeable to duty. The Tribunal in case of Santogen Textile Mill Ltd. v. CCE, Mumbai-II,2007 (214) E.L.T. 386 (Tri. - Mumbai), has held that in cases where the 100% EOU has diverted the duty free procured goods to the market, instead of bringing the same in his factory, the manufacturer cannot be fastened with any liability in as much as he loses control over the goods so as to ensure safe reach of the same with the consignee. It is the 100% EOU, who has entered into a bond with the Asstt. Commissioner for proper accountal of receipt, storage and utilization of such goods and to pay, on demand, an amount equal to the duty leviable on the goods, if the same are proved not to have been used in connection with the production of the goods for export purposes. Similarly, in case of CCE, Cochin v. BPL Systems Projects Ltd. - 2002 (144) E.L.T. 437 (Tribunal), it has been held that in case the goods are removed by a manufacturer on receipt of CT-3 certificate to a 100% EOU, and not used as envisaged, action for recovery of the duty liability on exemption availed at the stage of removal from the factory of the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter hearing the ld SDR, we find that the main issue involved relates to the determination of FOB value of export to arrive at the quantum of eligible domestic clearances and whether the same should include only physical export or it should include deemed export as well. If deemed exports are held to be not included, then the quantum of clearances permitted in DTA will be accordingly reduced. This issue has been decided by the Tribunal in favour of the assessee on a number of precedent decisions, holding that the value of deemed export should be included while determining the FOB value of export, based on which DTA clearances are permitted. However, in this case, the assessee is not in appeal before us. The duty on finished goods stands demanded on the ground that the same is in excess of the permissible limit for the purpose of DTA clearance. The department s claim is to the effect that the raw material used in such finished products cleared in DTA should be treated as not used for the intended purposes and the duty on import should be demanded. We do not agree with this view. In this case, it can not be said that the raw materials have not been used for the intended purpose. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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