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TMI Blog2009 (8) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... % EOU engaged in manufacture of processed man-made fabrics. Their factory was visited by Central Excise officers on 7/8-5-03 and in presence of Panchas, verification of the stock was done. It was noticed that physical stock of the fabric available in the unit was different than the recorded fabric in terms of quantity, weight and quality etc. Shri Bhomia, authorized signatory of the appellant, in his statement recorded on 8-5-03 admitted that the grey fabric received under CT-3 procedure were cleared illicitly in the open market against cash payment and were substituted with other processed fabrics procured from the three units. Shri M.J. Jain, partner of the said unit, in his statement recorded on 19-5-03, agreed with the statement made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above order, appellant filed an appeal before Commissioner (Appeals), who held against them on merit. However, in respect of rate of duty, he held that the appellants are required to pay duty under main Section 3(1) of CEA, 1944 in respect of payment of duty under proviso to Section 3(1) of CEA, 1944. He, accordingly, reduced duty to Rs. 2,23,902/- along with reduction of penalty to the above extent. He also set aside confiscation of the seized goods on the ground that the adjudicating authority has himself expressed doubt about the existence of the three units from whom substituted goods have been procured. He also reduced penalty on Shri M.J. Jain to Rs. 25,000/- and on Shri Bhomia to Rs. 2,000/-. The said order is appealed against befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, cannot be interfered with. 6. As regards the quantum of duty required to be confirmed against M/s. Swagat Synthetics, we find that the Commissioner (Appeals) has granted benefit to the appellant by observing that their liability to pay duty arose under main Section 3(1) of CEA, 1944. The Larger Bench of the Tribunal in the case of M/s. Jaipur Golden Transport Co. Pvt. Ltd. v. CCE, Surat 2007 (215) E.L.T. 503 (T.-LB), has held that DTA sales by 100% EOU with or without permission of Development Commissioner are to be assessed to duty in terms of proviso of Section 3(1) of CEA and benefit of exemption under Notification 125/84-C.E., is not available. By following the above decision of the Larger Bench, we set aside that part of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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