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2008 (10) TMI 531 - AT - Central ExciseClandestine production - Yarn cotton yarn - Evidence - Statement retracted statement - whether the Appellant s factory during the period from 1996 to 2001 had produced only cross reel hank yarn or produced plain reel hank yarn? - Held that - while it can be said that the Appellant have produced cross reel hank yarn on some occasions it would be totally wrong to conclude that throughout during the period from 1996 to 2001 the Appellant company produced only cross reel hank yarn. Therefore while the stock of yarn found in the factory premises at the time of the officer s visit to the factory on 27-9-01 and the stock of yarn found in the premises of M/s. Komal Synthetics which on test by the CRCL was found to be cross reel hank yarn can be treated as cross reel hank yarn the findings of these tests cannot be applied to the other clearances. The duty can be charged only in respect of those goods which on tests were found to be cross reel hank - matter remanded to the Commissioner for re-determination of the Appellant s duty liability based on the above finding and re-quantification of the penalty to be imposed on the Appellants - appeal allowed by way of remand.
Issues Involved:
1. Whether the cotton yarn manufactured by the appellant was in plain reel hank form and thus exempt from duty, or in cross reel hank form and liable for duty. 2. The validity of evidence used by the Revenue to support their claim. 3. The reliability of statements made by the appellant's employees and other witnesses. 4. The appropriateness of penalties imposed on the appellant and its Managing Director. Detailed Analysis: Issue 1: Nature of Cotton Yarn Manufactured The main dispute revolves around whether the cotton yarn produced by the appellant was in plain reel hank form, which is fully exempt from duty under Notification No. 3/01-C.E., or in cross reel hank form, which is liable for duty. The Revenue alleged that the appellant had been misdeclaring cross reel hank yarn as plain reel hank yarn to evade duty, resulting in a demand for Rs. 2,70,25,962/- along with interest and penalties. Issue 2: Validity of Evidence The Revenue's evidence included: - CRCL Test Reports: The Central Revenue Control Laboratory (CRCL) reported that samples drawn from the appellant's factory on 27-09-01 and from M/s. Komal Synthetics' premises were cross reel hank yarn. - Statements of Employees: Statements from Shri R.B. Tiwari, the production supervisor, and Shri Salil Malhotra, the machinery supplier, indicated that the machinery could produce cross reel hank yarn. The Tribunal found this evidence insufficient to conclusively prove that the appellant consistently produced cross reel hank yarn throughout the disputed period. It emphasized that the correspondence with customers about the quality of plain reel hank yarn suggested production of plain reel hank yarn. Additionally, the Tribunal noted the lack of comprehensive inquiry with a large number of buyers and the absence of technical expert opinions on the machinery's capability. Issue 3: Reliability of Statements - Shri R.B. Tiwari's Statement: Although Tiwari initially stated that the factory produced only cross reel hank yarn, he retracted this statement, claiming it was made under duress. The Tribunal held that retracted statements require corroboration by independent evidence, which was lacking in this case. - Shri Salil Malhotra's Statement: Malhotra confirmed that the machinery could produce cross reel hank yarn with additional parts, but he also stated that such parts were not supplied. There was no Panchnama or technical expert's opinion to confirm the machinery's configuration. Issue 4: Appropriateness of Penalties Given the insufficient evidence to prove that all yarn produced from 1996 to 2001 was cross reel hank yarn, the Tribunal concluded that the penalties imposed were not justified. It cited previous judgments, such as those in Kiran Spinning Mills and Bee-Am Chemicals Ltd., which held that test reports for specific lots cannot be generalized to all clearances. The Tribunal also referenced the Supreme Court's stance in Oudh Sugar Mills Ltd. that duty evasion allegations cannot be based on assumptions. Conclusion The Tribunal set aside the impugned order and remanded the case to the Commissioner for re-determination of the appellant's duty liability based on the findings that only the specific lots tested and found to be cross reel hank yarn should be subject to duty. The penalties were to be re-quantified in view of the reduced duty liability. The appeals were disposed of accordingly.
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