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TMI Blog2019 (11) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine removal is a serious charge and requires to be substantiated by completing the chain of procurement of raw material, use of other raw material, electricity consumption, labour charges, manufacture of final products, sale of final products, transportation of final product and financial transaction - In the instant case no trace of evidence, even on sample base, has been adduced to complete the chain and prove the allegation. It is not the case of the department that there were discrepancies in the stock in the factory premises of the appellants. The allegation cannot be sustained by negative application i.e. just by alleging that the appellants have not maintained any records for receipt of the texturised yarn alleged to have been received by the appellants. No other evidence, except for the entries in the sales register of another company, to show receipt of raw material, use of other material, labour and fuel and clandestine manufacture and removal, has been put forth by revenue. That being the case we are doubtful if a case of clandestine removal can be sustained. Benefit of concessional of rate of duty as contained in notification No.5/99 - HELD THAT:- The side ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dodhia Synthetics Ltd. that at times, if a particular consignment is not lifted by a certain company, the same is diverted to other companies and the entries in the register remains in the name of original consignee; Shri Tarun P. Shah, Director of the Appellants stated that the Appellants have not made any payment for such texturized yarn alleged to have been purchased from M/s. Punit Yarn Agency; another director Shri Bharat Kumar Shah has simply endorsed the statement of Shri Tarun P. Shah; in spite of this the Learned Commissioner and the lower authority recorded the findings that the seller and purchaser have accepted their guilt. He further submits that the lower authority has not allowed the cross examination of Shri Jayesh Pathak, Proprietor of Punit Yarn Agency. Learned Counsel for the Appellants further submits that the department has neither proved the sale and the receipt of raw material nor established the manufacture of finished goods. He further submits that from the seven Bills issued by M/s. Punit Yarn Agency, it is apparent that the goods were purchased on M/s. Beekaylon and Ashok Industries on payment of duty in the open market and that they have proved the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocessors Vs Commissioner of Central Excise, Surat 2014 (313) ELT 724 (Tri. Ahmd) (x). Baba BAlak Nath Steel (P) Ltd. Vs Commissioner of Central Excise 2010 (259) ELT 499 (P H) (xi). Amrit Agro Industries Ltd. Vs Commissioner of C.Ex. Ghaziabad 2007 (210) ELT 183 (S.C.) (xii). Gulabchand Silk Mills P. Ltd. Vs CCE, Hyderabad-II 2005 (184) ELT 263 (Tri.Bang) (xiii). Phoenix Mills Ltd. Vs Union of India 2004 (168) ELT 310 (Bom) (xiv). Sanjay V. Deora Vs CESTAT 2014 (306) ELT 533 (Guj) affirmed by Apex Court 2014 (309) ELT A131(SC). 4. Heard both the sides and perused the records of the case. The brief issue that requires to be decided in this case is as to whether the charge of clandestine removal against the appellants is sustained by evidence and as to whether the appellants are eligible for exemption under notification 5/1999 dated 28.02.1999. The revenue alleged that the appellants have received 43920.31 kgs of white texturized yarn from M/s. Punit Agency; processed the same to manufacture dyed yarn and clandestinely removed the same. The case put forth by revenue is that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires to be substantiated by completing the chain of procurement of raw material, use of other raw material, electricity consumption, labour charges, manufacture of final products, sale of final products, transportation of final product and financial transaction. We do not mean to say that the above should be proved with an arithmetically correct manner. In the instant case no trace of evidence, even on sample base, has been adduced to complete the chain and prove the allegation. It is not the case of the department that there were discrepancies in the stock in the factory premises of the appellants. The allegation cannot be sustained by negative application i.e. just by alleging that the appellants have not maintained any records for receipt of the texturised yarn alleged to have been received by the appellants. No other evidence, except for the entries in the sales register of another company, to show receipt of raw material, use of other material, labour and fuel and clandestine manufacture and removal, has been put forth by revenue. That being the case we are doubtful if a case of clandestine removal can be sustained. The original authority as well as the Appellant Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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