TMI Blog2004 (1) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... When the stock of fabrics was challenged it was found that Rs. 9,724.50 L.mts of MMF was in excess of the book balance. He explained that he purchased grey fabrics from the open market and got them processed through different mills of the city, namely: (1) Madhusudan Silk Mills, (2) Om Prakash Jai Prakash Dyeing and Printing Mills, and (3) Luthra Dyg. Prg. Mills. The officers seized the excess stock as the prop admitted that he got grey fabrics processed and received them without the cover of Central Excise invoices and without payment of duty. The excess stock as per his own admission is non-duty paid. The officers also recovered some incriminating documents from him in the form of kachcha delivery challan evidencing receipt of Rs. 81,27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) set aside the order. He observed that the statements of the proprietor were not voluntary, the statements were written in English and were stereo typed, the department did not establish the non-duty paid nature of the fabrics, confiscation and penalty not sustainable and the mills, who were alleged to have fabricated the fabrics, denied having done so. He also brought out page 5 of his order, referring to an earlier order he passed in respect of similar goods found in similar circumstances, that duty can be demanded only from a manufacture according to the Apex Court's decision in Ujagar Print's case [1988 (38) E.L.T. 535 (S.C.)]. Paras 30 and 30B of the Supreme Court order has been paraphrased. He also observed again referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to discharge the duty liability. The department rightly demanded the duty from the shopkeeper and imposed penalty on him. 5.Heard the ld. SDR. None appeared for the respondent. 6.It is a cardinal precept of law that a fraud overrules all. In the present case, the department through the statements made by the owner of the fabrics, established the non-duty paid nature of the goods. Every lead given by the owner of the seized goods was followed up. When the lead did not take the officers any further, they approached him (the shopkeeper) again and he stated that he had spoken lies when he gave the names of the processors and that he had already paid the duty on the non-duty paid fabrics. The proprietor of M/s. N.D. Textiles has the peculia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, I hardly see any reason in the Commissioner (Appeals)'s finding that the statements made by the respondent are not voluntary. 8.The Commissioner (Appeals) at one stage says that the department has to establish the non-duty paid character of the goods before proceedings against them, particularly when the goods are found in the buyer's premises. Very true. Indeed that should be the case. But in this case the department has done only that before they seized the goods and proceeded against them. 9.They could not have been rejecting the cheques sent by the respondent towards payment of duty when he himself says that he has to discharge the duty, it is a fact that the department could not bring out the processors of the fabrics. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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