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TMI Blog2018 (12) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... demand should be restricted to only the illicit clearance of textured yarn recovered from 03.12.2001 to 01.01.2002 - Held that:- It is seen that the production recorded in the said diary is only from 11.12.2001 to 31.12.2001. Obviously the clearances before 11.12.2001 recorded in the diary need to be factored in the calculation of total illicit clearances. In these circumstances, we cannot find fault with the impugned order as regard the quantification of the quantity illicitly removed is concerned. Benefit of Notification No. 3/2001-CE denied - Held that:- It is seen that the benefit of said notification is available only if the goods are manufactured by using textured or draw twisted yarn on which appropriated duty has been paid in terms of condition No.22 to the said notification - In the instant case, the appellant did not have any evidence of purchase the goods from the market. The only other conclusion can be that goods were obtained from grey market. In these circumstances the goods cannot be deemed to be duty paid goods - benefit of Notification 3/2001 rightly denied. Time Limitation - case of appellant is that the issue came to knowledge of Revenue in the year 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order on the following grounds. a) He argued that the author of the diary has not been identified, and therefore, the such document cannot be admitted as evidence. b) The quantity of clandestine clearance was originally identified as 16089.80 KGs and the appellants had accepted their guilt and paid duty in respect of said quantity immediately after punchnama. The revenue cannot change the quantity on which demand has been made. c) He argued that the SCN has been issued years after the said search was made and at this stage Revenue had sought to increase the quantity of which they have demanded duty which is incorrect. d) He further argued that since the SCN for seizure was issued in the year 2002, it was not open to Revenue to wait till 2005 to issue the SCN on the same case. He relied on the following decision for this point. Rivaa Textiles Inds Ltd. 2015 (322) ELT 90 (Guj.) Rivaa Textile Inds. Ltd. 2006 (197) ELT 555 (Tri. Mum) e) Ld. Counsel argued that in respect of clandestine clearance the yarn purchased should treated as duty paid yarn and benefit of Notification 3/2001 should be extended. In support of this argument he relied on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case the diary was recovered from the premises of the appellant and therefore unless contrary is proved by the appellant themselves, the said diary is an admissible evidence. Since no evidence to the contrary has been produced by the appellant, the diary can be relied as an admissible evidence. 4.1 The next issue relates to the quantification. A summary of the diary is recorded in para 24 and 25 of the SCN. The said data is as follows: The appellants have sought to assert that demand should be restricted to only the illicit clearance of textured yarn recovered from 03.12.2001 to 01.01.2002. It is seen that the production recorded in the said diary is only from 11.12.2001 to 31.12.2001. Obviously the clearances before 11.12.2001 recorded in the diary need to be factored in the calculation of total illicit clearances. In these circumstances, we cannot find fault with the impugned order as regard the quantification of the quantity illicitly removed is concerned. 4.2 The next issue relates to the benefit of Notification No. 3/2001 being claimed by the appellant. The said Notification prescribes as follows: Notification No. 3 /2001-Central Excise In exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leviable under the Second Schedule the special duty of excise leviable under the Second Schedule to the Central Excise Tariff Act, or as the case may be, the additional duty leviable under the Customs Tariff Act, 1975 has already been paid; and (ii) No credit under rule 57AB or rule 57AK of the Central Excise Rules, 1944 has been availed in the process of dyeing, printing, bleaching or mercerizing in the manufacture of dyed printed, bleached or mercerized yarn. It is seen that the benefit of said notification is available only if the goods are manufactured by using textured or draw twisted yarn on which appropriated duty has been paid in terms of condition No.22 to the said notification. The appellants have claimed that they have purchased the goods from the market and therefore, as per the decision of Hon ble Apex Court in the case of Decent Dyeing Co. (supra) the said goods should be treated as duty paid goods and therefore they are entitled to benefit of Notification 3/2001. In the instant case it is seen that the appellant were asked to produce the purchase bills, invoices of the said textured of draw twisted yearn purchased by them. The appellants have f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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