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TMI Blog2006 (2) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... erabad-II TV Commissionerate, respectively. E/737 738/2002 of M/s. Dhananiwala Textiles (P) Ltd. Shri Kamalnayan Dhananiwala, M.D.: 2. M/s. Dhananiwala Textiles (P) Ltd. (DTPL) manufacture Polyester Textured and Twisted Yarn which are excisable commodities. Shri Kamalnayan Dhananiwala is the Managing Director of DTPL. On the basis of investigations, it appeared that M/s. DTPL were receiving Partially Oriented Yarn (POY) from M/s. Sanghi Polyesters Ltd. in the name of five fictitious units. It was alleged that they manufactured textured yarn out of POY received from M/s. Sanghi Polyesters Ltd. (SPL) and cleared them clandestinely without payment of duty. The Show Cause Notice was issued on 14-3-1997 proposing to recover an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of such payments should be available on record. Nothing is brought on record. (v) No statements obtained from the persons in whose names the 59 in voices had been issued by SPL for supply of POY. (vi) No statements have been recorded from the persons who are said to have transported the 59 consignments of POY from SPL to DTPL, who had paid for the transportation charges is also not available on record. (vii) No seizure of excess quantity of Texturised Yarn (final product produced out of POY) from the factory. (viii)No seizure of Texturised Yarn in transit (while being removed allegedly without payment of duty). (ix) No seizure at job workers premises who are said to have received non duty paid texturised yarn for conversion int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He only says there had been dispatches with or without central excise documents. (xv) There is no warrant to receive unaccounted POY and clandestine manufacture of texturised yarn and their removal without payment of duty if one were to consider that the value addition is less than 10% and the input credit available will be almost equal to the duty payable on the finished product manufactured out of the inputs. (xvi) The a seek credit if it is to be held that there had been receipt of 59 consignments of POY as noted in, Annexure-I to Show Cause Notice for clandestine manufacture and removal of texturised yarn without payment of duty. (xvii) The gist of the argument before the Hon'ble Tribunal was that there is no evidence to show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent and the Transporter, both corroborate the above allegations. The truck movement register maintained by the Transporter indicate the name of Dhananiwala (next to the fictitious firms). Shri Kamalnayan Dhananiwala has also accepted that POY was received under five different fictitious names. Statements have been taken from Shri Govinda Ravi and Shri V. K. Narayana of Sirsila who undertook manufacturer grey fabrics on job work basis for DTPL. After receiving texturised polyster yarn cleared by the appellant without payment of duty. It is also revealed that M/s. Hyderabad VLT Co., Hyderabad transported texturised yarn manufactured by DTPL to the job workers in Sirsila confirming the receipt of POY by DTPL. Even though the same was invoiced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices were received by DTPL. Since DTPL denies having received those goods, they would not produce any invoice, at least in order not to weaken their case. Since, the triplicate copy of the invoice is available and also in view of the fact that Revenue has established that the goods have been received by DTPL, it is proper that modvat benefit should be given in respect of the duty paid on all the 59 invoices. Therefore, while upholding the duty demand, we order that modvat benefit should be given in respect of all the 59 invoices on the basis of the triplicate copies available. The point raised by the Adjudicating Authority that the possibility of the duty paying documents having been misused elsewhere cannot be a ground for denying modva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious firms. The POY has been used to manufacture texturised yam, which in turn has been removed clandestinely without payment of duty for manufacture of grey fabrics. The Commission Agent, Transport Agent and etc., are the same as in the case of DTPL. In these circumstances, we do not want to discuss elaborately this case. The findings in the earlier case would be applicable for this case also. However, we have to mention that there were seizures of texturised yam and POY, which were not properly accounted for. In the impugned order, the Commissioner while upholding the clandestine clearance without payment of duty has demanded duty of Rs. 1,01,17,322/- towards BED and Rs. 15,17,598/- towards AED. He has also adjusted an amount of Rs. 13,18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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