TMI Blog2005 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2 The Limited Company has another unit namely Modern Denim (hereinafter referred to as MD or DTA) which is working under the EPCG Scheme in the Domestic Tariff Area and has the required registration as under the Central Excise Act, 1944. 1.3 MDL situated at village Moraiya, Sorbhaji Bevla Road, Dist. Ahmedabad, Gujarat and MD is also alleged to be a subsidiary is situated as same address Shri K.K. Sharma is Vice-President (Commercial) of MDL MD and Shri R.K. Kalla is Executive Director of MDL. 1.4 The officers, acting on basis of an intelligence to the effect that MDL MD had been indulging in evasion of Central Excise Duty, searched the premises, rolls of Denim fabrics then recorded in the account of MDL MD i.e. 2209 Rolls meas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than rate applicable on clearance for EPCG unit. (v) Shri K.K. Sharma, could not explain the excess quantity on 29-12-97 in his statement as recorded in RG 1 than the loom record of MD less production than loom record in MDL was explained as in process stock. Fabricated records were produced as an after thought clarifications were not satisfactory. (vi) The value of 474506 meters of Denim removed at Rs. 75 plus 930612 meters removed clandestinely worked out at Rs. 35587950 Rs. 69795900 Value of Grey Denim of 1101721 meters undervalued of Rs. 71611865.00. (vii) The Concessional rate of duty to MDL for DTA removal was denied and they were required to pay Customs Duty amounting to Rs. 89117606 CVD of Rs. 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on verification on 15-4-97 has issued an installation certificate. The annexure to this certificate gives the BE No. of import and dates of installation of Machines imported under EPCG Scheme. There installation dates range during the period September 95 to May 96. If that be so, and it is, since this certificate and date of installation have been verified by the Range Superintendent and found to be correct, then on 24/25-10-96, when the Anti-Evasion Officers visited the premises of MD, it could not have been said or alleged and upheld or there were any reasons to conclude that machinery was not installed in MD premises to manufacture. Parwani's statement recorded on 25-10-96, is therefore false on record it cannot be relied. The jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in process. No correlation with raw materials received and consumed has been brought out to substantiate the quantity of production. Demands made on assumptions and presumptions as in this case cannot be upheld. (c) The allegation of excess stocks allegedly made out and seized have been not upheld and the seizure had been vacated by the jurisdictional Assistant Commissioner. The Commissioner not finding this lifting of seizure to be relevant and an appeal had been filed, will not call for acceptance of his interpretation. No material on record in appeal filed has been shown to be in favour of Commissioner's view. (d) Reading of Board's Circular 618/9/2002-CX. dtd. 13-2-2002 and the provision of Notification 125/84-CX. wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, with the observations - "...... The matter is reverted back to the Commissioner for consideration of not only the rate but also it to decide the question whether the Respondent is entitled to exemption......." 2005 (179) E.L.T. A100 (S.C.)" (Emphasis supplied) Thus Himalaya International Larger Bench stipulation, as to rate with or without, being under proviso to Section 3(1) cannot be applied. The rate applicable under Section 3(1) is applicable. The same is NIL for Gray Denim fabrics or exempt under Act 125/84 read with 174/84-C.E. (g) Once goods cleared from MDL the EOU are found to be at NIL duty or fully exempt, the question of demand on MDL does not arise. It was submitted that there was no charge of processed Denim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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