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TMI Blog1998 (10) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and seized 400 L.Mtrs of cotton fabrics as the same was not accounted for in the records. On the basis of the statement recorded and the relevant documents the following facts were evident which indicated suppression of production of processed cotton fabrics and clearance of the same without payment of duty by the appellant : (i) In the note book seized under Sl.No. 10 of the mahazar, the details such as production, date of dispatch, quantity despatched, name of the party, sort, amount collected etc., are furnished. The receipt of the gray fabrics and the clearance of processed fabrics have not been reflected in the statutory Central Excise records such as Form-IV and RG 1 registers. It is clear from the admission of the partner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sors had admitted that he was also the Proprietor of M/s. Valarmathi Textiles and that the said unit was functioning in the premises of M/s. Premier Textile Processors and all the grey fabrics received in the name of M/s. Valarmathi Textiles, were dyed by M/s. Premier Textile Processors and removed without payment of duty. The quantity of grey fabrics worked out as detailed in the Annexure-II to the show cause notice. (v) The non-accounting of grey fabrics that were under process and the quantity of dyed fabrics that were kept ready for removal appeared to show that the assessee had been in the practice of receiving the Grey fabrics, process them with the aid of power and removing the processed (dyed) fabrics without accounting in the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The party-wise despatch note book only contained all the removal from the appellant s factory during 1996-97 and the total value of the goods cleared during the years 1994-95 to 1996-97 was Rs. 8,83,840/- chargeable to duty of Rs. 44,192/-. The Central Excise duty has to be demanded only for this amount and the appellant had clearly mentioned before the adjudicating authority that the figures adopted by the officers were not correct. They further submitted that the assessable value should be treated as cum-duty price and therefore, the excise duty payable on the said fabrics should be deducted from the value in terms of 4(4)(d)(ii) and in their support they relied upon the case of Padma Packages Ltd., [1996 (88) E.L.T. 732 (T)] , MRF case 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of figures collected from Daily Sales Account, invoice file and party-wise Despatch Note Book. From the evidence on record I find that the entire case has been built upon on the above records and their statements of Shri Ramaraj and G. Balamurugan. The Department has not made any independent investigation as to whether the goods manufactured by the appellant alleged to have been cleared without payment of duty were actually received by the buyers or not. No independent evidence has been brought on record to establish that the goods alleged to have been cleared clandestinely were received by the buyers. In the absence such an investigation and evidence on record it cannot be proved beyond doubt that the appellant had cleared the proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and consignees. In view of the above legal position, I find that in the absence of enquiry made at the consignee s end and the collection of evidence to the effect that they have cleared the cotton fabrics without payment of duty the charge of clandestine removal on the basis of the said note book and the statements is not established except the quantity already admitted by the appellants. They had admitted that they are liable to pay duty of Rs. 42,087/- on the cotton fabrics cleared by them without payment of duty. 4. As regards confiscation of 400 L.Mtrs of dyed cotton fabrics which was seized, the said goods were lying within the factory premises and these had not been cleared outside the factory. Therefore, there was no intention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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