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TMI Blog2013 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the yarn was manufactured/obtained by a 100% EOU and the fabrics were manufactured by a 100% EOU, some evidence was required. It was the department who had permitted M/s. Sunrise Silk Mills to function as a 100% EOU and therefore even if the unit had not been debonded - there had to be some return or intimation filed by the 100% EOU - It was quite possible that unit would have ceased to function earlier but there had to be some return or intimation filed by them to either Customs or to Development Commissioner or even to the banks - Since the duty demand was being raised by the Revenue on the ground that goods were manufactured/obtained by 100% EOU the responsibility to show that it was a 100% EOU who had manufactured/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y - Therefore, as regards grey fabrics, the appeal succeeds. As regards duty on yarn, the matter was remanded to the original Adjudicating Authority for fresh decision after giving reasonable opportunity to the appellants to present their case – Decided Partly in Favour of Assessee. - E/793/2010 - A/78/2012-WZB/AHD - Dated:- 16-12-2011 - Shri B.S.V. Murthy, J. Shri S. Suriyanarayanan, Advocate, for the Appellant. Shri V.K. Agarwal, AR, for the Respondent. ORDER The appellant M/s. Shiv Shakti Textiles is a manufacturer of grey fabrics and were functioning in five sheds No. 19 to 23. The appellants obtained registration from Central Excise under Rule 12(b). 2. Background of the case, filtering out unnecessary details, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and style of M/s. Shiv Shakti Textiles; that he obtained the registration under Central Excise in 2003 with address at 11, Sant Tukaram Society, Near Uma Bhavan, Bhatar, Surat; that he took the premises including the premises No. 21, Dabuwala Compound, Bhatar, Surat under lease; that he was maintaining consolidated accounts of goods manufactured and cleared; that the fabrics manufactured were to be entered in the records in the evening; that the yarn found in the said premises was duty paid raw materials purchased from M/s. CTX Textiles, Karanj, Surat. He produced certain invoices for procurement of yarn and the RG-1 and RG-23A Pt. I register. On scrutiny, it was found that stock of yarn as on 4-4-2004, in the RG-23A Pt. I was NIL. On 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The learned counsel submits that 100% EOU admittedly was never debonded but ceased to function in the year 2001 itself and the shed which was taken on lease was returned to the owner of M/s. Devan Textiles who in turn leased it to the present appellant along with other four sheds. No evidence has been put forth by the Revenue to show that the yarn or the grey fabrics were in existence when the 100% ceased functioning. In the absence of any evidence to show that the yarn or the fabrics was left over when the Sunrise Silk Mills stopped production and demand of duty equivalent to customs duty on these goods cannot be sustained. As regards the yarn, the learned counsel submitted that department has not conducted any investigation at the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that once it is shown that the goods were not procured from M/s. CTX Textiles and was found in the appellant s premises, the Revenue s contention that these goods were of the previous 100% EOU has to be accepted since no evidence has been putforth by the appellant to show that other than the appellant somebody else functioned in between i.e. the time M/s. Sunrise Silk Mills closed the unit and the premises was leased to the appellant. 8. I have considered the submissions made by both the sides. 9. The first question to be decided is whether duty demand can be sustained on the ground that the goods were found in a 100% EOU. No evidence has been putforth to contradict the submission of the owner of M/s. Sunrise Silk Mills that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which has been seized as a purchaser. This aspect has not been examined at all by the lower authority. Therefore for this purpose it has to be go back. Further, I also feel that it was the responsibility of the appellant to show that the goods were manufactured and supplied by the M/s. CTX Textiles since it was their claim and by showing the fact that there was no octroi stamp, a prima facie case has been made out by the Revenue even though it would have been better if they were to investigate at the suppliers end. In any case the appellant could have easily rebutted this observation of the Revenue that yarn could not have come to the appellant by producing an affidavit or a letter from the supplier and when I find that this issue is und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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