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TMI Blog2016 (9) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ayee cheques, particularly when the statements dt.08.06.2002 and 17.10.2003 of Shri Ratanlal Mahavirprasad Daruka are contradictory in nature and the invoices were produced on 02.09.2002 by the Appellant before the notice was issued to them on 28.04.2005. Therefore, it is appropriate to verify/examine the said evidences before arriving at the conclusion. Accordingly, in the interest of justice, we remand the matter to the Ld. Commissioner (Appeals) to decide the issues afresh after considering all evidences on record and the evidences that would be produced by the Appellant and in particular the acceptability or otherwise of the CA Certificate. - Appeal disposed of - Appeal No. E/1198, 1199/2008-DB - Order No. A/10410-10411/2016 - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner (Appeals) who in turn upheld the orders of the Adjudicating authority and dismissed their appeals. Hence, the present appeals. 3. Learned Chartered Accountant Shri Mukund Chauhan for the Appellant submits that the authorities below had wrongly denied the benefit of Notification No.06/2002-CE, dt.01.03.2002 in calculating the duty liability, even though the Appellant company had satisfied the conditions of the said notification viz. POY used in the manufacture of Textured Yarn had suffered duty and also they have not availed CENVAT Credit on the said POY. It is his contention that after the records were seized from their premises on 08.06.2002, the appellant later on 02.09.2002 submitted the evidences viz. three invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the penalty imposed under Sec.11AC of CEA,1944 on fulfillment necessary conditions in view of the decision of the Hon ble Gujrat High Court in the case of CCE Vs Harish Silk Mills 2010 (255) ELT 393 (Guj.) and CCE Vs G.P.Presstress Concrete Works 2015 (323) ELT 709 (Guj), they are eligible to the same. 5. Per contra, the learned Authorized Representative for the Revenue took us through the finding of the Adjudicating authority, where under, the Adjudicating authority has recorded reasons for not accepting the three invoices produced by the Appellant as the quantity mentioned therein were not sufficient to manufacture the textured yarn cleared without payment of duty even after addition of quantity due to oil gain @1.75% to the total q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Notification, it is clear that two conditions need to be satisfied so as to be eligible to the benefit of said notification. These are namely, the duty must have been paid on the POY used for texturisation and CENVAT Credit should not have been availed on the said POY. The claim of the Appellant that even though they had cleared 26,167.600 kgs of manufactured Textured yarn without payment of duty, however, the same had been manufactured from duty paid POY and they had not availed CENVAT Credit on the said POY. It is the claim of the Appellant that initially their Authorized Representative shri Ratanlal Mahavirprasad Daruka in his statement dt.08.06.2002 stated that the said quantity of finished goods were manufactured from POY p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through A/C payee cheques, accordingly it should be accepted. From the impugned Order we could not notice any observation on the evidentiary value of the said certificate and its acceptability, particularly when the statements dt.08.06.2002 and 17.10.2003 of Shri Ratanlal Mahavirprasad Daruka are contradictory in nature and the invoices were produced on 02.09.2002 by the Appellant before the notice was issued to them on28.04.2005 . Therefore, it is appropriate to verify/examine the said evidences before arriving at the conclusion. Accordingly, in the interest of justice, we remand the matter to the Ld. Commissioner (Appeals) to decide the issues afresh after considering all evidences on record and the evidences that would be produced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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