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TMI Blog2013 (9) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, M/s. Pawan Exports P. Ltd. is engaged in the manufacture of processed fabrics. The processing was being done by them on job work basis on the grey fabrics supplied by the customers. They were undertaking the processing of unembroidered fabrics as also embroidered fabrics. The processing of unembroidered fabrics was not attracting any duty of Excise whereas they were required to pay duty on other processed fabrics. 3. As a result of investigation conducted by DGAE, Central Excise, it was found that the appellants were maintaining two sets of invoices, i.e., Excise duty paid invoices and Excise duty free invoices. Accordingly, the processed fabrics other than the processed embroidered fabrics were being cleared by them on payment of duty on the basis of Excise duty paid invoices, whereas processed embroidered fabrics were being cleared under the cover of Excise duty free invoices. 4. Investigation conducted by the department revealed that the appellants were clearing processed fabrics under the guise of processed embroidered fabrics. It is seen that during the course of investigation, Revenue approached the buyers of the appellants and summoned them to tender their s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ric though the invoices received by them mentioned embroidered fabric. The said statements stands discussed one by one in the impugned order of the Commissioner. 6. Apart from the statements and records maintained by the buyers, it is also seen that Shri P.C. Arora, Manager of the appellants company in his statement dated 18-1-1999 has admitted that their customers have sent varying type of grey fabrics for processing whereas they have shown embroidered fabric have been shown in the Central Excise invoices issued by them. Similarly, Shri Anwarul Haque, Assistant Officer, Excise, of the appellants company has accepted the above fact by mentioning that processed embroidered fabric in the Central Excise invoices even when the goods sent were other than the same. He also admitted that such invoices were being made under the instructions of Shri P.C. Arora and the same were intended to evade payment of Central Excise duty. Statements of even Managing Director, Shri G.L. Nosaria, is to the effect that the fabric other than the embroidered fabric was being received by them from their customers and the same were being reflected in the Central Excise invoices as processed embroidered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by mentioning processed embroidered fabrics. During the course of arguments, it came to notice that most of the buyers of the appellants were exporters and were ultimately exporting fabric processed by the appellants either as such or after converting the same into apparel. The declarations made by them to the customs authorities for the purposes of export would establish the fact as regards the identity of the fabric. The appellants have not tried to procure the above evidence so as to support their plea that the fabric processed by them were actually embroidered fabric. We are of the view that apart from the fact of the some quantification mistakes, the appellants does not have a good prima facie case so as to ask for the dispensation of pre-deposit of duty in its entirety. 11. We also note that though the appellants have submitted that it is financially difficult to deposit the amount in question as their factory is closed but we note from the statement made before us that apart from making a mere assertion that the appellants is not in a position to deposit the duty amount in dispute due to financial constraint, no evidence of financial difficulty stands placed before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a defence that such goods were exported finally, the delay in furnishing such documents would have made it very difficult to the applicants to collect required evidence in his defence. Considering such delay, the fact that the appellants have not submitted such defence as observed by Member (Judicial) in Para 10 above cannot be given much importance in such context. The complaint that there are still some documents to be supplied persist. 16. The applicant plead that they do not understand the method adopted for working the differential duty confirmed as per Annexure E. I have perused this annexure. I find that this annexure gives duty payable in respect of clearance to 64 different parties for each of the years 1997-98 and 1998-99. The individual invoices for which duty has been demanded are not listed. This creates difficulties because it is accepted in the SCN itself (Para 5.1) that some of the invoices in EDF series have been in respect of embroidered fabrics received from their customers. Which invoices were left out as genuine and which have been taken as having wrong declaration is not made clear through the annexures. The basis for value adopted for this calculation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods to local market. The duty liability is critically dependent on this factor. There is a claim by, in the appeal that the goods were ultimately exported and drawback claimed, though such claim is not supported by documents. 19. I find that the case is made heavily relying on the statements of the following persons, - (a) Shri G.L. Nausaria, the Managing Director of the appellant firm (b) P.C. Arora, Manager of the appellant firm; (c) Shri Anwarul Haque, Assistant Officer, Excise of the appellant firm; The statements of these persons were with reference to one or two job cards. Statements given in respect of four job cards in all shown to these three persons cannot be extended to entire clearances for two years. 20. The next item of evidence is the statement of 24 buyers stating that they had not sent any embroidered fabric but the applicants recorded the fabric to be embroidered fabric. The applicants asked for cross-examination of these persons which was not allowed. The applicants have produced evidence to show that the buyers had in fact sent embroidered fabric. Statements of such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, - Whether further pre-deposit of Rs. 50 lakhs out of the duty demanded amounting to Rs. 1,73,36,275.10 and penalties is to be called for admission of appeal as recorded by Member (Judicial); OR Whether the deposit already made of Rs. 19,08,321/- is sufficient for admission of appeal and further pre-deposit should be waived for admission of the appeal. (Pronounced in open Court on ___________) Sd/- (Mathew John) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 26. The registry is directed to place the matter before the President, CESTAT to resolve the above difference in views. Sd/- (Mathew John) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) (Pronounced) 27. [Per : D.N. Panda, Member (J)]. - Every time when the matter came on board, both sides were on rivalry argument on the principles of natural justice. While appellant says that documents were not given for which appellant was prevented to lead defence, Revenue says all documents were given. If such argument goes on, reference Bench cannot solve such a problem. Therefore, it would be preferable to hear the appeal agreeing with ld. Technical Me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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