2004 (2) TMI 600 - AT - Central Excise

Demand - Finding without evidence - Process of stentering - Classification of goods - Suppression of facts - Confiscation - Non-accountal - Manufacture, completion of - Adjudication - Show cause notice - Demand - Limitation - Extended period

Issues Involved:
1. Duty demand on processed fabrics
2. Misdeclaration of fabric type
3. Confiscation of in-process materials
4. Applicability of exemption under Notification No. 297/79
5. Allegation of suppression of facts and extended period of limitation

Detailed Analysis:

Duty Demand on Processed Fabrics:
The dispute revolved around the processes carried out on PV shirting fabrics from December 1993 to August 1996 and January 1998. The Commissioner held that all PV shirtings processed by the appellant should have discharged duty, based on random checks of 55 entries out of over 3 lakh entries. However, the appellant contended that the verification was erroneous and that they had discharged duty wherever applicable. Upon re-verification, it was found that 25 out of 53 entries were cleared on payment of duty, one entry related to exempt cotton POPLY, and five entries were for reprocessing. The Tribunal concluded that the finding of stentering on all consignments was unsupported by evidence and that the purported random verification was unreliable.

Misdeclaration of Fabric Type:
The Commissioner alleged that the appellant misdeclared the fabric as cotton under Heading No. 52 instead of man-made fabric under Heading No. 54. The appellant argued that the fabrics were made from cotton seed and were described as PV shirting in invoices, which were filed along with assessment returns. The Tribunal found that the classification issue was not relevant since duty was paid at the correct rate wherever applicable. The demand raised was deemed time-barred as there was no evidence of fraud or suppression of facts.

Confiscation of In-Process Materials:
The Commissioner confiscated over 9389 meters of fabric for not being accounted for in the RG-I register. The appellant argued that these were in-process materials, not ready for entry in the finished goods record. The Tribunal agreed, noting that the goods were in lumps and required further processing before entry in the RG-I register. The Tribunal held that the confiscation was unwarranted and set it aside.

Applicability of Exemption under Notification No. 297/79:
The Commissioner interpreted the proviso to Notification No. 297/79 to mean that exemption was not available if non-dutiable processes were carried out in a factory undertaking dutiable processes. The appellant argued that this interpretation was incorrect and was not raised in the show cause notice. The Tribunal agreed, stating that adjudication should stay within the scope of the show cause notice and that the legal dispute could not be raised in a proceeding invoking the extended period of limitation.

Allegation of Suppression of Facts and Extended Period of Limitation:
The Tribunal found that the appellant had been filing classification lists, declarations, and returns, describing the goods as PV shirting. It was the Revenue's responsibility to raise issues within the normal time if they disagreed with the classification. The Tribunal held that the allegation of suppression of facts was not sustainable and that the entire proceedings were belated.

Conclusion:
The Tribunal concluded that the duty demand and confiscation were not sustainable, and in their absence, penalties and interest could not arise. The appeal was allowed, and the impugned order was set aside.

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