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TMI Blog2006 (11) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for manufacture of texturised yarn since May 2004. The assessee surrendered the Central Excise Registration on 20-8-2004 and informed the Department that they opt to avail the benefit of Notification No. 30/2004-C.E., dated 9-7-2004 from 20-8-2004 and also filed the last ER-1 Returns for the clearances up to 20-8-2004. In terms of the said Notification, the assessee will not be eligible for the benefit of Notification if they manufacture texturised yarn and if they have the facility to manufacture yarn. 2. The appellant s contention is that they do not have facility to manufacture yarn and even they were not carrying on the process of texturising yarn, as these two machines were put out of use since May 2004. Hence, they opted for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines to use. The said two machines were not in use and its functioning had been discontinued. As a result, they had surrendered the Central Excise Registration certificate on 20-8-2004 and informed the Department that they would opt to avail the benefit of the said Notification from 20-8-2004 and they also filed last ER-1 Returns for the clearances up to 20-8-2004. The Revenue has not accepted their position and has proceeded to launch proceedings after the visit of officers to the factory and finding the disused machine still lying in the factory. The statements recorded from the officers of the appellant s that two machines were not functional and its use had been discontinued, has not been accepted. Merely because the disused machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anes, or polyvinyl derivatives; or (b) by chemical transformation of natural organic polymers (for example cellulose, casein, proteins or algae), such as viscose rayon, cellulose acetate, cupro or aliginates. 5.2 The appellants have shown that they have purchased yarn from outside for dying purpose. They did not carry out any other processes including texturising in terms of the admitted facts. Neither they have the facility in their factory for manufacture of yarn nor texturised yarns. Therefore, the denial of exemption is not legal and proper. 5.3 In these circumstances, the denial of benefit on mere ground of disused machines lying in the factory is totally unjustified. The Counsel also relied on the findings of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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