9911796707
TMI Blog2000 (1) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... d in washing the fabric and washing machine which was sent to repair. A drier, which can be operated with power and not in working condition was also noticed. A rolling machine working with the aid of power used for rolling hand-processed fabrics was also noticed by them. In Palawadi unit there was no power operated machine. The printed fabrics lying there were also seized by them under the presumption that they were processed with the aid of power which was in 20 takas of approx. 500 metres worth Rs. 7500/- under the panchnama dated 23-11-1992 and given to the custody of the appellant under the same date under the supratnama. On the same date they have also seized 34 bales of printed textile fabrics machinery about 16,067.85 Linear Metres valued at Rs. 3,21,357/- and 500 metres of printed fabrics valued at Rs. 10,000/- were seized from Saithwadi unit under the panchnama and handed over to the appellant on the same date under the supratnama. The records were also seized. The appellant is not having printing facilities and machinery required for the processing of the printed textile fabrics. The show cause notice was issued on 21-5-1993 demanding the duty of Rs. 2,24,639.16 in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence. There cannot be any confiscation or penalty in view of the decision in the Pioneer Silk Mills case. The impugned Order is passed only on the presumption for the past period. The ld. JDR has contended that Gujarat High Court judgment in Maheshwari Mills has held that all the provisions of Central Excise applies to the 1957 Act. He has cited - 1992 (58) E.L.T. 9, 1988 (38) E.L.T. 720 (S.C.) = AIR 1989 SC 222. In the course of the reply it is contended that confiscation or penalty was not involved in that case and the decision of the Pioneer Silk Mills still hold good for earlier period. 4. Perused the Notification No. 253/82, dated 8-11-1982 and amended No. 23/92, dated 1-3-1992 with the panchnama at Exhibits A and B dated 23-11-1992, Annexures A and B and show cause notice dated 21-5-1993, documents enclosed to it as per Annexure B, and the appellant s reply dated 12-10-1993, and the bill of lading invoice dated 2-6-1993 and 14-5-1993 and shipping bill dated 14-5-1993 and 17-5-1993, and the impugned Order and the appeal memorandum. From the show cause notice, it is seen that the Unit I of the appellant at Palwadi for the processing of the fabric, power or steam was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were manufactured and exported. The appellant have not disclosed in the Central Excise declaration the mode of nature of process with the aid of power in Saithwadi factory. There was a mis-declaration wilfully and suppressed the fact of having Saithwadi unit in the declaration and have evaded Central Excise duty of Rs. 2,24,639.20 on the fabrics so processed and cleared during the period from 1-2-1992 to 23-11-1992. The fabrics seized under the panchnama were processed with the aid of power and liable to duty of Chapter 52 of Central Excise Tariff Act and it is liable for confiscation under 173Q and 226 of Central Excise Rules. Extended period of 5 years are applied in this case . Contravention of various rules are alleged in Paragraph 4 of the show cause notice. 5. The appellants have denied the correctness of the charge levelled against them in Paragraphs 4 and 5. According to them, the fabrics, seized printed cotton fabrics from first unit, was not processed by the appellant for want of printing machinery in their units. No manufacturing process was carried out on the printed cotton fabrics which is not liable to seizure. The proprietor M.K.K. Nair in his statement has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, and whenever required by the customs it was got done from the printers in the neighbourhood. This is also accepted by the adjudicating authority. But the adjudicating authority has observed that similar goods have been exported by Balaji as per documents which is not sufficient to show they were the same goods which were found with the appellant. Regarding the marks on the bundles stating the destination he has held to be not material. This observation is not correct because the description of the goods in the export documents and the description of the goods in the panchnama looks to be same. They are supported by the statement of the appellant and his accountant. They were released on bond. There is no reason to disbelieve the contention of the appellant in this regard especially in the presence of the marking on the goods stating their destination as Jamaica, which is ignored. According to the appellant they processed the fabrics and roll it and pack it. Their case of getting the fabrics printed is accepted by the adjudicating authority. Since it is established by the appellant that they have no facility of processing the printed fabrics with the printing machinery, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant gets the exemption of payment of Central Excise duty on the goods processes which were seized in this case. The question of liability of payment of fine and penalty does not arise. So the confiscation of the said goods also does not sustain. From the show cause notice and reply it is seen that the duty demanded is Central Excise Act not the Additional Excise Duty under 1957 Act as per the decision of the Pioneer Silk Mills - 1995 (80) E.L.T. 507, the contention of the appellant cannot be accepted and is rejected. 9. Under the impugned order the combined penalty of Rs. 6,500/- is imposed on the appellant. The reason assigned is for the various acts rendering the goods liable to confiscation they are liable to penalty. The adjudicating authority has taken a lenient view not imposing penalty on appellant as factory is from the cottage sector, located in the slums, and suffering from financial crush. The synopsis filed by the appellant gives clear picture about the condition of the unit regarding the processing of the fabrics. According to that, there was no facility to bring textile fabrics. Jigger was not connected to boiler and dryer was very old and not in working condition. ..... 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