9911796707
TMI Blog2024 (5) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... e premises in the presence of two independent Panchas and Shri Gajanand Surajbhan Agarwal, Director of both the units and seized the statutory records of M/s Anita Synthetics P Ltd (100% EOU). Another team of Central Excise officer headed by Superintendent, Central Excise and Customs, HPIU-Ii Surat-I, visited the factory premises of M/s Anita Synthetics P Ltd (100% EOU) Block No.46, GIDC, Pipodara, Surat on 07.08.1999 for preventive checks. After detailed investigation and recordings of statements of various persons and records recovered from the different premises of the appellant a Show Cause notice F No. V(CH.54) 15-16/OA/2004 dated 07.05.2004 was issued wherein the following proposals were made:- "26. Now, therefore, M/s. Anita Synthetics Pvt. Ltd. (100% EOU), Block No. 46, GIDC, Pipodara, Dist. Surat are hereby called upon to show cause to the Commissioner, Central Excise & Customs, Surat-11, 2nd floor, New Central Excise Building, Opp. Gandhi Baug, Chowk Bazar, Surat as to why: (i) the duty of Customs amounting to Rs. 3,43,597/- (BCD @35% Rs. 135262.00 + CVD @34.5% Rs. 179995.00 + CESS @0.05% Rs. 261.00 + SAD@ 4% Rs. 28,079.00) leviable on the illicit removal of 7156.720 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rs.3,86,-163/-, though not available for seizure, should not be confiscated under provisions of Section 111(0) of Customs Act, 1962 & redemption fine under Section 125 of Customs Act, 1962 should not be imposed on them & recovered by enforcing the terms of Bond & Bank Guarantee. (xi) The said goods i.e.110647.580 Kgs of polyester filament yarn valued at Rs.60,85,617/-, though not available for seizure, should not be confiscated under provisions of Rule 209 of erstwhile Central Excise Rules, 1944/ Section 111(0) of Customs Act, 1962 & redemption fine under Section 34 of Central Excise Act, 1944/ Section 125 of Customs Act, 1962 should not be imposed on them & recovered by enforcing the terms of Bond & Bank Guarantee (xii) The said goods l.e.4966.650 Kgs of polyester filament yarn valued at Rs.2,73,166/-, though not available for seizure, should not be confiscated under provisions of Rule 209 of erstwhile Central Excise Rules, 1944 / Section 111(0) of Customs Act, 1962 & redemption fine under Section 34 of Central Excise Act, 1944 / Section 125 of Customs Act, 1962 should not be imposed on them & recovered by enforcing the terms of Bond & Bank Guarantee. 27.. Now, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etics Pvt Ltd., 100% EOU, Pipodara, Surat under proviso to Sub-Section (1) of Section 11A of Central Excise Act, 1944/Section 72 and proviso to Section 28(1) of Customs Act, 1962. The demand is being confirmed both under Customs and Central Excise provisions because the assessee had not maintained separate registers entries for procurement of indigenous raw material or imported goods. Also they could not segregate or identify the origin of raw materials imported or indigenous. (iv) The interest at the, appropriate rate per annum on evaded duty mentioned at (i) above is confirmed under Section 72 read with Section 28AB of Customs Act, 1962. (v) The interest at the appropriate rate per annum on the evaded Duty mentioned at Sr. No. (ii) & (iii) above, is confirmed under section 11AB of Central Excise Act, 1944/under Section 72 read with section 28AB of Customs Act, 1962. (vi) I impose penalties of Rs. 54,10,612/- and Rs. 2,42,867/- on M/s. Anita Synthetics Pvt Ltd., 100% EOU under Section 11AC of Central Excise Act, 1944/Section 114-A of the Customs Act, 1962. In case, the amount of duty confirmed along with interest and reduced penalty is paid within 30 days of the receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k taking and records recovered from the appellant. Being aggrieved by the Order-In-Original the appellants filed the present appeals. 2. Shri Hasit Dave Learned Counsel appearing on behalf of the appellants submits that the Commissioner Surat has passed impugned order without complying the direction given by the CESTAT in the remand order dated 26.11.2014. According to which the Commissioner was suppose to conduct the cross-examination which he miserably failed to do so despite the specific request made by the appellant. Therefore, all the statements relied upon in the present case are liable to be straightaway discarded and if this be so statements being a sole basis of this case the entire impugned order liable to be set aside. 2.1 As regard first demand of Rs. 3,43,597/-, he submits that it is only based on finding weight of physical stock of grey fabrics (finished goods) less by 7156.720 Kgs since the recorded stock was 13257 Kgs admeasuring 66426 Linear meters. However, the officers also found that the length in linear meters is matching. Therefore, the allegation is on the assumption that 7156.720 Kgs of raw material (PFY) used in these finished grey fabrics was removed cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. No financial flow back from 3 buyers nor as any diverted raw material been ever intercepted nor has the department found single piece of evidence to support their version. The another evidence of the department to allege clandestine removal of raw material is based on 1 test report of the chemical examiner dated 21.01.1999, which showed that weight of grey fabrics is less in the sample drawn than what is recorded in the books of accounts. 2.6 He submits that the director of appellant company had immediately stated during investigation that these samples on which the test report is conducted are taken from 1 lot only of rejected consignment, having both low quality and weight of goods. Therefore, test report based on such 1 lot of rejected goods, cannot be made the basis for alleged clearance of 110647 Kgs of PFY (Raw material). Therefore, the test report cannot be relied for allegation of clandestinely clearance. 2.7 He further submits that the demand is also barred by limitation since search conducted on 07.08.1999 and statements obtained then, cannot permit the invocation of the larger period therefore goods cleared under statutory invoices, AR3A's, received re-ware housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interests 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.]" 4.1 From the plain reading of Section 9D of Central Excise Act, 1944, we find that it is mandatory on the part of the Adjudicating Authority to conduct the examination-in-chief of the witnesses and thereafter allow the assessee to cross-examine the witnesses. After that when the witness stands by with their statement those statements can be used as admissible evidence for adjudication of the case. In the present case the Adjudicating Authority has rejected the request for cross-examination of the witnesses. Therefore, the statements which are heavily relied upon in the present case cannot be used as evidence. Therefore, all the statements relied upon in the present case are straightway discarded as evidence. Our this view is supported by the following judgments:- * J.P. ISC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are not admissible as held above, the clandestine removal is not established. 4.6 As regard the demand of Rs. 54,10,612/- and Rs. 2,42,867/- under Section 3 of Central Excise Act are concern. We find that it is an allegation that the appellant has clandestinely removed duty free raw material by manufacturing and clearing grey fabric (finish goods) showing the excess weight than the actual weight of grey fabrics, in their statutory records is also based on assumption and presumption only. This allegation is based on firstly the statements of 3 buyers only, whose cross examination was not permitted and who have vaguely stated that they have received less grey fabric by 20 Kgs per 100 linear meters. It is surprising that if there is a less quantity of grey fabrics, none of these three buyers ever raised any issue of less weight but rather paid the full invoice value for the goods received by them. The removal of the goods from the 100 % EOU is under statutory documents that AR3As which have been accepted by the Range Superintendent of the recipient party by counter signed the same. Thereafter doubting about the weight of the good is not correct. 4.7 We also find that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter as to from which container the samples were drawn. Though the goods have been released, it is only a case of provisional release and the Department having accepted the request made by the appellant for a re-test and the test report on the second test having gone in favour of the assessee and the benefit having been extended to the remaining goods, in our considered view, the transaction cannot be split up into two, more so when there is no notice issued to the assessee as to from which containers the samples were drawn at the first instance. " b) In the case of Jupiter Trading Company vs. Commr. Of Cus. C.Ex. & S.T. reported at 2019 (369) ELT 1524 CESTAT Bangalore bench has passed the following order:- "5. After considering the submissions of the Learned AR and after going through the order passed by the Commissioner, we find that the Commissioner has passed a detailed and exhaustive order after considering each and every submission made by both parties. Further we find that the only ground on which the Revenue has filed the appeal is that the Commissioner should have confirmed the entire demand in the show cause notice but the Commissioner after examining the evidence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and deserves to be set aside. The petitioner are entitled to the clearance without payment of any duty." e) In the case of York Exports Vs. Commissioner of Customs (Export), Mumbai reported at 2004 (169) ELT 175 the CESTAT Mumbai Bench has following view:- "3. We note that only two test reports covering two shipments, out of the sixteen export consignments from which samples were drawn, showed adverse reports viz., presence of acrylic fibres. In all eighteen consignments were exported and no samples were drawn from two export shipments. The Commissioner accepted the description of export consignments from which no samples were drawn. Thus, out of eighteen shipments only two shipments are under dispute. 4. As soon as these adverse findings of the test report were brought to the notice of the appellants, they contested the correctness of the test reports and requested the concerned authorities to subject the remnants of samples or the duplicate samples for a re-test. This request, we note, has not been acceded to. Instead, the contents of the test report are justified in the impugned order by saying that the laboratory could not have recorded the presence of "acrylic fibre" i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
