9911796707
TMI Blog2017 (9) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... he brief facts of the case are that the appellants were issued with a Show Cause Notice dated 02/07/2003, wherein it was alleged that during the Financial Year 2000-01 they were engaged in the manufacture of Ready Made Garments & Mosquito Bednets having value of clearance of Rs. 4,60,27,223/- and did not pay duty on the same and during the Financial Year 2001-02 the appellant/manufacturer was not eligible to avail SSI Exemption and therefore, they were required to pay Central Excise duty from the first clearance on ward. It was also alleged in the said Show Cause Notice that there was suppression on the part of the appellant and therefore proviso to Sub-section (1) of Section 11A of the Central Excise Act, 1944 was invoked. The said Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing at the conclusion whether the appellant No. 1 has manufactured the said quantity of mosquito nets in his own factory. The appellant has produced voluminous documents before us to marshall the argument that they had procured these mosquito nets from M/s Gagan Fabrics. Sales tax entry from for receipt of the material from Ghaziabad into Delhi was also relied upon to support the claim that said mosquito nets were purchased by them. The said entry tax form indicates that mosquito nets were received from Ghaziabad by the appellant No. 1. We also find that the balance sheet of the appellant for the relevant period do not indicate any substantial purchase of plant and machinery which would indicate the capacity of the appellant to manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h that appellant had the capacity to manufacture the quantity of mosquito nets supplied by him to the HSCC and that he had manufactured the same in his factory. The said conclusion cannot be arrived on presumptions and assumptions, but has to be concluded by the Adjudicating Authority, relying upon the evidences. With above findings the matter was remanded to the Original Authority to arrive at a fresh conclusion accordingly to the above findings." 3. In compliance to the said remand order the Original Authority re-adjudicate the matter through impugned Order-in-Original No.01/Commr./GZB/2009 dated 12/05/2009, wherein the Original Authority once again confirmed the entire remand and imposed equal penalty on the appellant/manufacturer and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench questioned the ld. D. R. to find out from the record and established that it was available on the record to consider that each machine could manufacture 5 mosquito nets in 1 hour, during the relevant time there were 20 sewing machines available in the factory, the factory was running for all 24 hours for all 365 days of the said Financial Years 2000-01& 2001-02 to which ld. D. R. has replied that there was no such information available on record. 6. Having considered the rival contentions and on perusal of the facts on record, we find that this Tribunal had directed the Original Authority to first establish that appellant had the capacity to manufacture the quantity of Mosquito Bednets supplied to HSCC during the Financial Years 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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