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TMI Blog2016 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... mand. They have been filing classification list declaration under Rule 173 B mentioning the nature of the product, rate of duty and the concessional notifications claimed by them. Investigation in the case started with the search on 25.03.2000. A show cause notice to confiscate the seized goods and to demand duty on the same was issued on 17.11.2000. Another show cause notice resulting in the impugned order was issued on 28.04.2003. This notice was issued invoking fraud, suppression, etc. for an extended period. Though the first notice was mainly relating to confiscation of the seized goods and to demand duty, there is nothing on record to show substantial additional evidence/facts have come into the position of the Department after issue of the first show cause notice resulting in the second show cause notice for the extended period. As such, we find that the impugned order cannot be sustained on the question of time bar also. In view of the above findings, we set aside the impugned order and allow the appeals. - Decided in favour of assessee. - Excise Appeals Nos.3271 and 3272/2006-EX(DB) - Final Order Nos.53144-53145/2015 - Dated:- 16-9-2015 - SHRI ASHOK JINDAL, MEMBER (JUDIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any clearance of yarn in cone mis-declared as PR Hanks. (d) The demand for extended period was wrongly proposed. It was claimed by the appellant that they have been filing, from the date of consignment of their operation, various classification lists under Rule 173 B clearly stating the products manufactured by them along with applicable rate of duty as per various notifications in force from time to time. (e) As first show cause notice was issued on 17.11.2000 covering a part of the impugned period dealing with proposed confiscation of seized goods, issue of another show cause notice invoking extended period of time on 28.4.2003 is legally untenable. 3. During the arguments, ld. Counsel for the appellant reiterated the grounds of appeal. He stated that the Department proceeded against the appellant only on the basis of certain presumptions without any corroborative evidence of any mis-declared clearance of yarn in cones instead of PR Hanks. The department proceeded under the presumption that the entire production during the impugned period was cleared in the form of cones and cheese, mis-declaring the same as if in the form of PR Hanks. This was done only on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an at best be a procedural lapse cannot be accepted. 7. Heard both the sides and perused the appeal records. 8. The point for decision is whether or not there is a case for clandestine removal of cotton yarn in cones/cheese by the appellant mis-declaring the same as in PR Hanks. The case of the Revenue is mainly based on- (a) Availability of only two reeling machines (non-operational) (b) Availability of cotton yarn only in the form of cones /cheese with no stock of yarn in PR hanks. (c) The RG-1 register does not contain details of production of yarn in cones or cheese found in the factory. (d) No reeling machine was found in the factory. The sale invoices of cotton yarn PR hanks was interpolated subsequently. 9. We find that the appellant have submitted documentary evidence regarding actual purchase of six reeling machines and also capitalization of the said machines in their books of accounts. They also produced certain evidence regarding movement of machines for repair and payment of repair charges. These aspects have not been inquired into or commented upon by the adjudicating authority. The case against the appellant was mainly on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no finding was recorded as to why such production and clearance as per RG-1/statutory records is not acceptable. Further, we find that in para 48 (ii), the Original Authority discusses regarding the requirement and operations of reeling machines. On the one side, he mentions about party s declarations to the Textile Commissioner as having 6 reeling machines. On the other side, he concludes that the availability of machine during 1998-99 cannot be based on certificates of May, 2004. No inquiry appears to have been made regarding purchase of reeling machine, repair of reeling machines as claimed by the appellant. Regarding seizure of yarn in the dealer s premises, the Original Authority in a separate proceedings, dropped the case vide order dated 26.09.2001. 10. After considering the nature of allegations and the analysis of evidences as adduced by the Original Authority, we find that the case for demand of duty based on the allegations of mis-declared clandestine clearance has not been supported by evidence and as such, we are not able to agree with the findings of the Original Authority as already narrated. The Original Authority himself appears to have confirmed the demand ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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