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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 ..... of law in holding that the unit is not liable to pay the amount as the customs duty because it is Central Excise duty which could be leviable on the said unit? (iii) Whether the ld. CESTA Tribunal is justified in the eye of law in holding that from the extract of Annexure-A attached to the panchnama dated 3-7-2001, the goods have been procured by the said unit from 100% EOU or from some other local traders, is the perverse finding 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal is apparently erroneous and the findings since are not based on materials which were made available before the Tribunal, the same is not to be sustained. It is also further pointed out that in both, the Order-in-Original and in the order of the Commissioner of Appeals, there are categorical findings with regard to the illicit removal as also of raw material being imported material having been procured from 100% EOU and yet the Tribunal disregarded those aspects concluding 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any defence arguments made in connection thereto is not sustainable. Hence I find that mills has illicitly removed/diverted/sold out 1045 pcs of grey fabrics admeasuring 102148 L Mtrs valued at Rs. 20,42,960/- (which were manufactured out of imported raw material and procured duty free from other 100% EOUs) under CT-3 procedure, without cover of any duty paying documents/Invoices, without payment of Customs duty leviable thereon and without entering the same in their statutory records." 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, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his contention that what was leviable was Central Excise duty in respect of the goods obtained from 100% EOU and other local sources and not Customs duty." As can be noted from the findings of the Tribunal, it 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 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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