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TMI Blog2003 (9) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... ture Nylon Filament Yarn. They also manufacture Polyester Texture Yarn (hereinafter referred as PTxY) from Partially Oriented Yarn (hereinafter referred as POY) which is purchased. This PTxY is entirely consumed and is not cleared for home consumption, no duty is paid on it when captively consumed for manufacture of twisted yarn (hereinafter referred to PTY) by virtue of Notification No. 67/97-CE. PTY is however, cleared on payment of appropriate duty to the appellant s sister concern for dyeing were duty is paid on Dyed yarn. Thereafter such dyed yarn is cleared on payment of duty to independent customers also. The PTY sent to the sister concern for dyeing is sent on job work basis under the provision of Notification No. 214/86-CE. PTY is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7)(A), since that credit has been utilised by the appellants, a demand of duty was made for the same. Penalties were also imposed on the appellants and on employees. 4. After hearing both sides and considering the matter it is found:- (a) The Commissioner in the impugned order has relied upon the registration certificate, granted to the appellants, to hold that the appellants are independent texturisers and hence the bar contained in Rule 57AB(2)(c) is applicable. However, this registration certificate does not refer the appellants as an independent texturisers, as found by the Commissioner. The registration certificate apart from indicating the description of excisable goods as textured yarn, also indicates twisted yarn. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under Heading No. 54.02 of the said First Schedule, manufactured by an independent texturiser, that is to say, a manufacturer engaged in the manufacture of texturised yarn (including draw-twisted or draw-wound yarn) of polyesters falling under Heading No. 54.02, who does not have the facility in his factory (including plant and machinery) for manufacture of partially oriented yarn of polyesters falling under sub-heading No. 5402.42 of the said First Schedule. (d) A plain reading of the above, indicates that in relation to PTxY, an Independent Texturiser will be such a manufacturer, who is engaged in the activity of manufacture of PTxY. But who does not have facility for manufacture of POY falling under sub-heading 5402.42 of F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be upheld, since no reasons are arrived at as to why by doing process of twisting, on Texturised Yarn, the unit should be an independent Texturiser. There is no reason to conclude that the appellants main process undertaken is of Texturising merely on basis of POY machinery not being available since they are also licenced as Twisters of Yarn also. The process of Twisting not being mentioned in the notification would not lead to the conclusion as arrived at. There is force in the argument that Textured Yarn is captively consumed in the Twisted Yarn by them. There is no counter to this proposition. They are thus engaged, objectively as Twisters and Texturising is an intermediate stage process incidentally be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai-1 (b) 1997 (96) E.L.T. 659 (Tribunal) - Deioners Speciality Chemicals Pvt. Ltd. v. CCE (c) 2002 (145) E.L.T. 322 (Tribunal) = 2002 (49) RLT 741 (Tri) - CCE v. Primal Spinning Weaving Mills Ltd. And that cannot be found fault with. (g) As regards demand of Rs. 3,16,898/- as per Rule 57H(7A), according to the department, the duty paid on nylon twisted yarn out of Cenvat credit during 1-3-2000 to 31-1-2001 is Rs. 36,87,520/-, therefore credit of duty paid on nylon yarn available for utilisation of nylon twisted yarn was only Rs. 33,70,656/-. The notice therefore proceeds on the footing, that balance duty of Rs. 3,16,864/- paid on the clearances of nylon twisted yarn is out of Cenvat credit availed on POY. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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