9911796707
TMI Blog2005 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... an 1.5%. Statements of the following persons were recorded. (i) Shri A. Farookdeen, Processing Manager (ii) Shri R.D.Thiagarajan, Sr. Officer (Processing) (iii) Shri M. Rajamanickam, Production Co-ordinator (iv) Shri P. Chandran, Partner The statement of the above persons revealed that fabrics with residual shrinkage of less than 1.5% were manufactured by the appellants' firm. The Officers drew eight samples of the fabrics of different sizes for testing the residual shrinkage in their in-house laboratory. The test results revealed that the residual shrinkage for all the finished fabrics was within 1.5%. Again samples were drawn and sent to the Chemical Examiner, Customs House Laboratory, Chennai for further test. Out of 10 finished samples of 9 fabrics had the residual shrinkage nil. The appellants maintained a note book indicating the shrinkage of the sample. The test results obtained by the departmental officers were in accordance with the test report contained in the shrinkage note book. Shri A. Farookdeen, Process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner issued the impugned order. In the impugned order, the Commissioner held that the Appellants are not entitled for the benefit of Notification No. 8/96 and suppressed facts with an intent to evade duty. The details of the impugned order are as follows:- Sl.No. SCN Dated Duty Confirmed Rs. Amount of duty dropped Rs. Period Penalty Rs. 1. 15-12-1999 1,90,54,897 1-6-1987 to 10-5-1999 3,07,41,541/- 2, 31-12-1999 93,194 7,67,187 4-6-1999 to 30-6-1999 50,000/- 3. 27-1-2000 78,032 11,13,212 7/99 35,000/- 4. 3-3-2000 1,98,326 5,34,299 8/99 1,00,000/- 5. 4-4-2000 3,04,725 12,58,512 9/99 to 10/99 12,58,512/- 6. 1-6-2000 Dropped further proceedings initiated. 7. 28-11-2000 Dropped further proceedings initiated 8. 26-4-2000 1,571 40,28,255 4/2000 to 6/2000 500/- 9. 31-7-2001 3,648 43,00,661 7/2000 to 9/2000 1,500/- In all the above cases interest under Section 11AB has also been demanded. 3. The appellants are aggrieved over the impugned order. Hence they have come before this Tribunal for relief. 4. Shri S. Ignatius, ld. Advocate appeared for the appellants and Smt. R. Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to set up a factory for the manufacture of cotton processed fabrics at Somayampalayam with an annual capacity of 12 lakhs metres. It was further informed that the commercial production would commence in the month of January, 1997. They also informed that some machineries had already been received and they would like to avail Modvat credit on 29-10-96. The second declaration under Rule 57Q was filed in respect of certain machineries. Even they had declared that the capital goods should not be used for the production of a final product which is exempt from payment of duty. Further, two more declarations were sent on 4-2-97 and 18-2-97. After 18-2-97, the appellants did not communicate with the department. In other words they did not inform the department of the commencement of production. According to ld. Consultant, C.B.E.C. issued a circular No. 115/26/96-CX dated 6-4-1995, according to which the term "bleached woven fabrics or dyed fabrics" in the relevant sub-headings will not include fabrics which have been woven from bleached or dyed yarn but have not been subjected to any processes. The appellants actually manufactured the fabrics from bleached or dyed yarn. These fabrics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no documentary evidence or otherwise to show their intention to evade payment of central excise duty. They have submitted that their production is meant for manufacture of export garments. This submission has not been negatived by any evidence collected by the department. In these circumstances, it is very difficult to sustain invocation of the extended period. The following case law cited by the appellants are relevant :- (a) Padmini Products v. CCE - 1989 (43) E.L.T. 195 (S.C.) (b) Tamilnadu House Board v. CCE, Madras - 1994 (74) E.L.T. 9 (S.C.) (c) Cosmic Dye Chemicals v. CCE, Bombay - 1995 (75) E.L.T. 721 (S.C.) (d) Collector v. Fedders Lloyds Corpn Ltd. - 2005 (182) E.L.T. A.38 (S.C.) (e) Ugamchand Bhandari v. CCE, Madras - 2004 (167) E.L.T. 491 (S.C.) Hence for the first issue, our finding is that the extended period not invocable. (ii) Whether the appellants are entitled to claim the benefit of exemption Notification No. 8/96-C.E. and its successor for the fabrics manufactured by them? The fabrics manufactured by the appellants fall under sub-heading against reference No. 52.15 in Notification No. 8/96-C.E. dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants manufactured shrink proofing fabrics? As per Note 3 of Chapter 52 shrinkage proofing shall amount to manufacture. The shrink proof fabric is liable for duty. Therefore, if there is evidence that the appellants manufactured shrink proof fabrics and cleared them they are liable to pay duty. Shrink proof fabrics would be classifiable under Heading 5207.29. Ld. Advocate invited out attention to C.B.E.C. Circular No. 15/110/61-CX dated 27-4-64 according to which shrink proof fabrics will be subjected to duty as processed fabrics only if they are "marketed" as shrink proof fabrics having residual shrinkage of 1.5% or below. It was submitted that the shrinkage in respect of the fabrics manufactured by the appellants is 3% and above. Therefore, as per the Board's Circular these fabrics cannot be considered as shrink proof fabrics. In this connection the ld. Counsel produced a copy of material minimum requirements which gives the various standards for the fabrics required by their foreign buyers. According to the documents the minimum shrinkage stipulated is 3%. Therefore, there is no need for them to produce fabrics which shrinkage of 1.5% or less. In fact they produced fabrics s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
