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TMI Blog2014 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... said to have been illicitly removed - Thus, both the adjudicating authorities found clear breach of Notification No. 53/97, dated 3-6-1997 r/w provisions of Customs Act - This was in violation of EXIM policy and procedures laid down under the Customs law where imported grey fabrics on payment of customs duty was to be necessarily utilized for manufacturing final products of processed MMF and the same was required to be exported. Tribunal held that the findings of the lower authorities were not based on evidence, while accepting the fact that for removal of goods in illicit manner and for selling grey fabrics in small quantities in the market, there could not be possibly any evidence available - It is required to be specifically mentioned that Tribunal noted that there ought to be proper documentation for 100% EOU taking out the goods - As seen from the orders of all the adjudicating authorities that the Order-in-Original and the order of Commissioner (A) relied on the evidences that have been adduced by Department and also depended heavily on the statement given by the Director who has not retracted the same till the date - What had further weighed with the authorities is the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding as 100% EOU cannot have imported the goods without proper documents? (iv) Whether Shri Afzal Fazal Dalal, Director of the said unit has deliberately and wilfully, illicitly cleared 1045 pieces of Grey Fabrics admeasuring 102148 L. Mtrs. valued at Rs. 20,42,960/- in the open market, without payment of Custom Duty, without recording the same in the records of the said Unit and without valid invoices, with a view to evade the payment of Customs Duty leviable thereon, is liable to make the payment of the penalty of Rs. 3,20,650/- under Section 112(b) of the Customs Act, 1962? In Tax Appeal No. 1542 of 2010 : (i) Whether the ld. CESTA Tribunal is justified in the eye of law in holding that the Revenue has failed to establish from the documentary evidence that the grey fabrics were imported one and customs duty is liable to be paid therein, ignoring the material evidence being the statement of the director of the unit recorded u/s. 14 of the Central Excise Act, 1944 which has not been retracted by him at any point of time? (ii) Whether the ld. CESTA Tribunal is justified in the eye of law in holding that the unit is not liable to pay the amount as the customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contrary to the same. 5. Learned counsel Ms. Dilbur Contractor with Mr. Premal Nanavati for the respondent submitted that there was a clear and apparent mistake on the part of both the authorities to hold that there was contravention of the provisions of Notification No. 53/97, dated 3-6-1997 as also that the goods removed were manufactured from material which were imported. It is also further argued that onus was on the Department to prove that the material procured was from 100% EOU or was imported raw material and the respondent cannot be asked to prove negative as that would be virtually impossible to do so. The decision of the Tribunal is fervently supported on the ground that the Tribunal has rightly arrived at the conclusion and that in absence of either that the raw material was imported or the same having been procured from 100% EOU, there is no question of levying the customs duty and therefore, the entire notice has to fail. 6. On duly considering the submissions of both sides and also closely examining the orders of all the authorities below, what emerges and requires to be noted, at the outset, is the fact that the notice has been issued under Section 124 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Commissioner (Appeals), while dealing with this issue, confirmed the findings of the original authority. It also noted the contention of the respondent that they had not contravened the provisions of Notification No. 53/97. In absence of any documentary evidences, the Commissioner (Appeals), found that it was not possible not to support the decision of the original authority whereby it held that the goods manufactured were out of imported raw material and were procured duty free from other 100% EOU. It also noted that there was no separate maintenance of accounts for imported and indigenous raw materials. Thus, both the adjudicating authorities found clear breach of Notification No. 53/97, dated 3-6-1997 read with some of the provisions of Customs Act. This was in violation of EXIM policy and procedures laid down under the Customs law where imported grey fabrics on payment of customs duty was to be necessarily utilized for manufacturing final products of processed MMF and the same was required to be exported. 7. The Tribunal while dealing with this issue has held thus : 4. We have considered the submissions made by both sides. We notice that in the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be specifically mentioned that the Tribunal noted that there ought to be proper documentation for 100% EOU taking out the goods. 8. As can be seen from the orders of all the adjudicating authorities that the Order-in-Original and the order of the Commissioner (Appeals) have based their decisions on the materials that had been made available to the authorities. As can also be seen that these authorities relied on the evidences that have been adduced by the Department and also depended heavily on the statement given by the Director who has not retracted the same till the date. What had further weighed with the authorities is the fact that there was no separate maintenance of record which would reveal either the material having been imported or having been procured from 100% EOU. Learned counsel for the respondent, at this stage, attempted to point out from the show cause notice that there were records adduced by the Department at the time of show cause notice indicating maintenance of record by the respondent and also suggesting and strengthening the stand of the respondent with regard to such separate maintenance of accounts. Although show cause notice does ment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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