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TMI Blog2022 (9) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... Filament Pvt. Ltd., M/s. Geena Synthetics Pvt. Ltd., M/s. A. P. Textiles Ltd., M/s. Mansa Synthetics Pvt. Ltd., M/s. Micro Polyester Pvt. Ltd. and M/s. Good Luck Synthetics Ltd. The Tribunal has given a finding that it is undisputed that the Department was in knowledge of the job work activities, that while sending goods, the challans were prepared and the yarn was acknowledged by the job workers of having been received. Respondent-Company has paid job work charges to the said job workers and also deducted TDS on such payments as found by the Tribunal from Form-16A issued to all six job workers. It is also recorded by the Tribunal that during investigation, the statements of the Joint Managing Director, Director and employees of Respondent-Company were recorded and all of them has stated that the goods were sent for job work. The Tribunal also records that in respect of M/s Geena Synthetics, M/s. Rama Filaments, M/s. Mansa Synthetics, M/s. Micro Polyester and M/s. Good Luck Synthetics were existing at the time of investigation. It is further recorded that none of the statements from the job workers recorded by the investigation deny the fact that they had undertaken job work act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs and its transportation to the customers of Respondent-Company and two job workers M/s. Micro Polyester Pvt. Ltd. and M/s. Goodluck Synthetics Pvt. Ltd. had stated that their records had been destroyed in floods in 2006. It is submitted that summons issued to the buyers of the grey fabrics were returned undelivered except one buyer who denied having purchased any fabrics or having made any transaction with the Respondent-Company. 4. It is submitted that during the inquiry, it was found that in most of the cases the exact amount for which the cheques were issued to Respondent-Company were deposited in cash or by transfer into the bank account of the so called buyers to facilitate the clearance of cheques. That the accounts of the so called buyers of fabrics were opened to regularize the fictitious transaction of sale of fabrics by the Respondent-Company as the element of profit of trading was not reflected in the account as is seen in the normal course of such business. 5. It is submitted that based on the above, a show-cause notice dated 8th June, 2009 was issued by the Commissioner, Central Excise, Vapi, raising a demand of duty of Rs.3,11,76,080/- under Section 11A(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any single paper supporting the allegation of the revenue has been found. In case of CCE, Rajkot Vs. Kalyan Glaze Tiles 2008 (222) ELT 417 (TRI) the Tribunal held as under : 2. The appellants' main contention is that the name given in the loading slips does not tally with their names in as much as in most of the slips had mentioned as Kalyan Ceramics and Kalyan Tiles , whereas the name of their unit is Kalyan Glazed Tiles . Further, it has been contended that the entire case of Revenue is based on the loading slips recovered from the transporter's premises and the statement of the partner. As regards the recovery of the slips, it is seen that the transporter has not been made a party to the proceedings. He has placed an affidavit on record during the course of adjudication, to the effect that the chits are prepared to keep notes of requirements given by the clients over phone and it is not always that the trucks are booked and actually used by such persons. The transportation does not get executed due to various practical problems. It has further been mentioned in the affidavit that the trucks booked for the minimum quantity due to freight reason which does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the aforesaid order of the CESTAT, the Appellant-Revenue is in Appeal proposing the following substantial question of law :- Whether the Hon ble CESTAT had erred in not considering the outcome of the investigation that : (i) no grey fabrics were manufactured from the yarn cleared without payment of duty by M/s. Filatex under Rule 12B of Central Excise Rules, 2002 to their job workers; (ii) the yarns had been diverted and sold elsewhere and records payment transactions had been manipulated for such fictitious sale of fabrics, (iii) POY has been diverted without payment of duty under the garb of its clearance under the Rule 12B of Central Excise Rules, 2002. 9. Ms. Maya Majumdar, learned Standing Counsel of Appellant-Revenue submits that the Tribunal has completely erred in ignoring the outcome of the investigation that no grey fabrics were manufactured from the yarn cleared without payment of duty by Respondent-Company, that the yarns had been diverted and sold elsewhere and records and payment transactions have been manipulated for such fictitious sale of fabrics, that the polyester yarn had been diverted without payment of duty under the garb of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as Prof. Brett felicitously puts it - all exactness is a fake . El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of' such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Batch v. Archer (1774) 1 Cowp 63 at p. 65 According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted . Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 12. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-Section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with the Department as required under the Central Excise Rules, 2002 and that the copies of the said intimation had been annexed to the Appeal before the Tribunal. The Tribunal has given a finding that it is undisputed that the Department was in knowledge of the job work activities, that while sending goods, the challans were prepared and the yarn was acknowledged by the job workers of having been received. Respondent-Company has paid job work charges to the said job workers and also deducted TDS on such payments as found by the Tribunal from Form-16A issued to all six job workers. It is also recorded by the Tribunal that during investigation, the statements of the Joint Managing Director, Director and employees of Respondent-Company were recorded and all of them has stated that the goods were sent for job work. The Tribunal also records that in respect of M/s Geena Synthetics, M/s. Rama Filaments, M/s. Mansa Synthetics, M/s. Micro Polyester and M/s. Good Luck Synthetics were existing at the time of investigation. It is further recorded that none of the statements from the job workers recorded by the investigation deny the fact that they had undertaken job work activity on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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