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TMI Blog2003 (1) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The appeals also relate to imposition of penalty on K.M. Jhunjhunwala of Rs. 5 lakh under Rule 209A of the Central Excise Rules and a penalty of Rs. 25,000/- on the appellant S.S. Karandikar under the same rule. The Commissioner also ordered confiscation of goods which were allowed to be redeemed at Rs. 1 lakh. 2. The appellants carry on the business of texturising yarn at their factory situate at Silvassa. They imported during the relevant time 174019.900 kgs. of POY under DEEC Scheme. They also purchased 701216.206 kgs. of POY from the local market which is admittedly duty paid. They also texturised the yarns and exported 173885.640 kgs. of texturised yarn and sold locally 689681.465 kgs. of texturised yarn. It would appear that in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... texturised yarn manufactured out of POY imported under DEEC scheme, in the local market without payment of duty. The export of texturised yarn without claiming drawback cannot permit the noticee to clear the texturised yarn, manufactured out of POY imported under DEEC scheme, for home consumption without payment of Central Excise duty in violation of the provisions of Notification No. 178/83-CE prevailing at the material time. 30. I have considered the noticees contention and perused the CA s certificate. It is to be noted here that no evidence has been produced by the noticees either during the course of investigation or in their defence to show that the entire quantity of texturised yarn manufactured out of POY imported under DEEC sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing exemption, under the said Notification. As such, M/s. Satidham filed a wrong declaration with the department stating that they were texturising the yarn out of duty paid POY whereas they were texturising yarn out of non-duty paid imported POY. Therefore, they have misdeclared and suppressed the material facts from the department and thereby evaded the payment of Central Excise duty on large scale to the tune of Rs. 2,14,75,784.44 Ps. In view of these facts, proviso to Section 11A(1) of Central Excises and Salt Act, 1944 is to be invoked in the instant case for recovery of duty evaded by M/s. Satidham as alleged in the show cause notice. He has finally confirmed the demand. Hence the present appeals. 3. Learned Advocates S/Shri Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. He says that there cannot be any gain which could be been made by the appellants. In fact he emphasises the fact that when Karandikar made the statement, he has accepted that they did not claim the drawback in respect of the exports. If there would have been intention to deny the Government of its legitimate dues, the assessee would have made its legitimate claim of drawback. Since there is no claim made on the drawback, the bona fides of the assessee and absence of any intention to make wrongful gain on the part of the assessee is existing in this case. The entire series of events would show, as emphasised by the counsel, that there has been only a mistake. He therefore states that the invocation of larger period is wrong in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions. He was not able to explain what advantage in the price the assessee would have obtained by utilising the imported duty free material for clearance of texturised yarn or the local excise duty paid material for export of texturised yarn. He was not able to cite any specific example so as to stop the benefit of the assessee. Nor are we able to find existence of such advantage. Assuming it to be so (which is not proved) that there is difference in the price of yarn of the same denier depending upon whether it is manufactured in India or abroad, it is not possible to see how utilisation of one type of yarn towards the manufacture of the other (imported or local consumption vice versa) would give any benefit to the appellant. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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