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TMI Blog2023 (3) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... of law : (i) Whether the tribunal had failed to appreciate that onus lay on the respondent to prove that the conditions imposed in Notification Nos.4/97-CE, dated March 1, 1997 (Sl. No.78) 5/98-CE dated June 2, 1998 (Sl. No.96), 5- 99/CE dated February 28, 1999 (Sl. No.94), 6/00, dated March 1, 2000 were satisfied in the instant case? (ii) Whether, in the facts and circumstances of the case, the tribunal should have held that the respondent had failed to discharge the onus of proving that the two conditions mentioned in the said notifications, namely, that the goods in question had to be sold to the Apex Bodies by the respondent and that Certificate should be issued from the said Apex Bodies to the respondent at the time of the clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation issued by the Government. The adjudicating authority on analysing the documents available on seizure and on scrutiny of the statements which were recorded from various persons, pointed out that the purchasing bills instead of delivering the cross reel hank yarn to the respondent and the noticee no.3, the apex bodies, delivered them directly to various trading concern who appear to be merchants and traders of yarn and not handloom weavers. The respondent contended before the adjudicating authority that the private traders were engaged by them for lifting yarn from the mills on their behalf for subsequent delivery to the weavers even in some cases on credit basis and even though the goods were lifted by the private dealers, the ownershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Mill at a rate of Rs. 50/- per unit and would have collected Rs. 70/- per unit from the Trader thereby making a straight profit of Rs. 20/- per unit instead of getting only 1.5% of Rs. 70/- i.e. Rs. 1.05 p. per unit as commission. This point has not been controverted by the Noticee and there has been no effective defence against the said findings. It has also been found that the role of two Apex Bodies is that if a Commission Agent of Noticee No. 1 as well as of other spinning mills of the Government of West Bengal and their function, with reference to the sale of cross reel hank cotton yarn produced by various Spinning Mills including Noticee No. 1 is only for routing the payments from the traders who are the real purchasers/buyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority pointed out that such certificates had been issued by two apex bodies namely, the respondent herein and the other apex body, the noticee no.3 and such certificates were issued not before effecting clearance of such yarn from the spinning mill (noticee no.1.) but on a later date. Further, the adjudicating authority, as a matter of fact, found that the certificates were issued by the respondent based on the certificates issued by the spinning mill (noticee no.1) and not on the basis of verification of facts. Further, the adjudicating authority found that the respondent was not at all aware as to where the yarn is ultimately going since they do not have any control on the sales of the traders to whom the yarns are actually sold. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a truncated form. The tribunal observed that the goods were purchased by the respondent, apex body for further distribution to traders who further sold the same to ultimate handloom weavers but might be located at the interior of the country having no access to the respondent/apex body for direct purchase of the goods. It is not clear as to how the tribunal had rendered such a finding. The tribunal has not rendered any finding as to the evidence which was available before the adjudicating authority who has clearly brought out the modus operandi which was adopted in the entire process. The evidence also pointed out that the respondent and other apex society have merely acted as a commission agent by receiving commission at the rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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