2002 (2) TMI 168 - AT - Central Excise

Summary

Issues Involved:
1. Alleged short payment of duty on polyester blended yarn.
2. Reliability of test reports and evidence.
3. Assumptions and presumptions in duty demand.
4. Time-barred demand and applicability of Section 11AC.

Summary:

1. Alleged Short Payment of Duty:
The appellants were accused of manufacturing and removing polyester cotton blended yarn with short payment of duty during 1994-95 to 1996-97. They allegedly declared higher use of polyester fibre than actually used, mixed saved polyester with cut fibre/waste, and cleared the yarn as cotton yarn, thus paying less duty.

2. Reliability of Test Reports and Evidence:
The Commissioner confirmed the duty and penalty based on test reports of two samples (Nos. 3 and 7) taken during a search on 29-8-97, which showed discrepancies in the yarn composition. However, the appellants argued that out of eight samples, six were in their favor. Retests of samples Nos. 3 and 7 showed contradictory results, and the quantity of samples was insufficient for proper analysis. The Tribunal found that the test reports of the two samples were unreliable and that the reports of the other six samples, which were favorable to the appellants, were wrongly ignored.

3. Assumptions and Presumptions in Duty Demand:
The Tribunal noted that the Commissioner's order was based on assumptions and presumptions without concrete evidence. The alleged saving of polyester fibre and its mixture with cut waste was not substantiated with specific quantities or reliable evidence. The Tribunal emphasized that test reports could only apply to the lot from which samples were taken and could not be retroactively applied to previous years. The adjudicating authority's assumptions were contrary to established legal principles.

4. Time-Barred Demand and Applicability of Section 11AC:
The appellants contended that the demand was time-barred and that Section 11AC, which imposes penalties for short payment of duty, was not applicable as most of the period in dispute was prior to its enforcement. The Tribunal did not delve into this issue as the order was set aside on merits.

Conclusion:
The Tribunal set aside the Commissioner's order, finding no cogent evidence to prove the clandestine manufacture and removal of polyester blended yarn in the guise of cotton yarn. The appeal was accepted with consequential relief.