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TMI Blog2011 (7) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... - we cannot come to the conclusion that the statements were recorded under duress and not voluntary. Regarding Notification No.13/81 - once a benefit is extended to the assessee under Notification for discharge of nil rate of duty and such conditions are violated, it would amount to short levy which requires to be demanded from the assessee only under Section 28 (1) of the Customs Act, 1962 - there is no dispute that the appellant is not able to provide the correct reconciliation of the materials which were imported duty free by him - Appeal are rejected - C/240 & 241/2000 - 430 & 431/2011 - Dated:- 1-7-2011 - SHRI M. V. RAVINDRAN, SHRI B. S. V. MURTHY, JJ. Appearance S/Shri V. R. Balasubramani Pradyumn G. H, Advocates for the appellants. Shri Harish .J, JDR for the Revenue. Per Shri M. V. Ravindran, This appeal is directed against Order-in-Original No. 3/2000/Commr. Adjn dated 1.2.2000. 2. The relevant fact that arises for consideration are the appellant herein was a 100% EOU set up to manufacture mulberry silk fabrics. The appellant was permitted to import capital goods and raw materials duty free and started their imports in September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Managing Director of the appellant-company preferred an appeal before the Tribunal. This Bench vide its Final Order No.748 749/2006 dated 4.4.2006 rejected the appeal filed by the appellants. Aggrieved by such an order, the appellants preferred an appeal before the Hon ble High Court of Karnataka against the said final order of the Tribunal. Hon ble High Court of Karnataka vide their judgment dated 9.4.2010 set aside the order and remanded the matter back to us by observing as under: 5. Be that as it may, the assessee had raised as many as 19 contentions before the Tribunal, with regard to the validity of the show cause notice issued to the assessee. We find that Tribunal instead of considering each of those contentions, has merely stated that the only question that was to be determined was as to whether the show cause notice issued was based on the correct provisions of law or not and by answering that even if the show cause notice was not issued by invoking the correct provision of law, the same was not vitiated, dismissed the appeal of the assessee. 6. On a reading of the entire order, we find that there has been no consideration of each of the contentions raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act. (vii) Section 17 of the Customs Act speaks of assessment of duty. The bill of Entry is filed under section 46. The Bill of Entry can be either for home consumption or warehousing. In the instant case, Bill of Entry for warehousing is filed. (viii) Section 65 deals with the manufacture and other operations in relation to goods in a warehouse. Section 65 (2) deals with waste or refuse arising in the case of manufacturing in relation to any warehoused goods. (ix) As per Section 71, goods should not be taken out of the warehouse except as provided by this Act. (x) Section 72 speaks of goods improperly removed from the warehouse, etc. According to the above Section, in respect of goods for which a bond has been executed under Section 59 and which have not been cleared for home consumption or exportation, and are not duly accounted for to the satisfaction of the proper officer, the proper officer may demand, and the owner of such goods shall forthwith pay the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. (xi) Section 117 of the Customs Act speaks of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has not considered the issue in a proper perspective and hence, confirmation of demand is incorrect and imposition of penalty is also incorrect. It is his submission that Revenue has not adduced any corroborative evidence except that there is a confessional statement of the Managing Director that duty free imported raw materials were diverted. It is his submission that except for such confessional statement and there being shortage of raw materials, there is nothing on record to indicate that there was clandestine removal of the goods. He would rely upon the following case laws. (i) Tejwal Dyestuff Industries Vs. CCE, Ahmedabad - 2007 (216) ELT 310 (Tri.-Ahmd.) (ii) CCE, C ST, Daman Vs. Nissan Thermoware P. Ltd. - 2011 (266) ELT 45 (Guj.) (iii) CCE, Surat-I Vs. Shree Rohini Enterprises - 2010 (261) ELT 325 (Tri.-Ahmd.) 4.2 It is also his submission that the show-cause notice issued under Section 28 of the Customs Act, 1962 is incorrect, as the provisions of warehousing would be applicable in this case. 5. The learned departmental representative would on the other hand submit that conditions of Notification No.13/81are violated. It is his submission tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the second point, the learned counsel submits that he is not pressing this point as there is no violation of principles of natural justice. 6.3 As regards the third point, we find that there is no evidence on this point before the Adjudicating Authority or before us. The evidence on samples sent for purpose of booking orders to foreign countries could not be established by the appellants before us. In the absence of any such evidence, this point raised by the appellant seems to be incorrect. 6.4 As regards the fourth point that wastages to be fixed at 34.76%, the learned counsel fairly submits that the Adjudicating Authority has given them wastage which is due and correct and concedes this point. 6.5 As regards the fifth point, we find that the show-cause notice has been issued to the assessee-appellant and the Managing Director under the provisions of Section 28 (1) of the Customs Act, 1962 for the violation of the conditions of Notification No.13/81. On perusal of the show-cause notice, we find that in paragraph 23, the Revenue has clearly indicated that the appellant had violated the conditions under Customs Notification No.13/81 dt. 9.2.1981 inasmuch as that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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