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TMI Blog2002 (2) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured multifold cotton yarn and multi fold polyester yarn from single yarn, which were cleared by them without payment of duty, availing exemption under Notification No. 5/98-C.E. (S. No. 138); that the Asstt. Commissioner disallowed them the benefit of the Exemption Notification and confirmed the demand of duty and imposed penalty on the ground that exemption from payment was available subject to the condition that single yarn used by them was duty paid, which had not been proved by them; that however, the Commissioner (Appeals) under the impugned order allowed the appeals filed by the respondents relying on the decision of the Supreme Court in the case of CCE v. Decent Dyeing Company [1990 (45) E.L.T. 201 (S.C.)]. Ld. SDR, further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty of excise has already been paid applies to goods which have been made from duty paid material and for the purpose of getting the benefit of exemption under the Notification, the goods must be made from raw material on which excise duty has, as the matter of fact, been paid, and has been paid at the appropriate or correct rate. Unless the manufacturer has paid, the correct amount of excise duty, he is not entitled to the benefit of exemption notification. 3. Ld. SDR finally submitted that there is no explanation provided in the notification for the relevant serial number to the effect that all the stocks available in the market would be treated as duty paid stocks; that as held by the Supreme Court in the case of Novopan India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on reads as under : If manufactured out of yarn - (i) Falling under Chapter 51, 52, 54 or 55 of the said Schedule, and (ii) On which the appropriate duty of excise under the said schedule, or as the case may be the additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975) has already been paid. 6. It is thus evident that the nil rate of duty is applicable to multiple (folded) yarns, only if the same has been manufactured out of yarn on which the appropriate duty of excise has already been paid. The phrase on which appropriate duty of excise has already been paid came up for consideration of the Constitutional Bench of the Supreme Court in the case of Dhiren Chemicals Industries (supra). The Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid, they took up the plea that the gate passes etc. has been eaten by book-worms. The Supreme Court dismissed the appeal filed by the appellants therein. In the case of Decent Dyeing Co. relied upon by the advocate for the respondents, the facts are different since the respondents company had disclosed the names of the persons from whom they have received the yarn as also the names of the manufactures enclosing the copies of the relevant record and the Revenue had even then not chosen to verify these facts. In view of these facts the Supreme Court dismissed the appeal filed by the Revenue, observing that no goods can be removed from the place of manufacture without first paying the excise duty. In the present matter, it has been ment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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