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TMI Blog2023 (1) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Further, ongoing through the relevant Explanation of the Notifications it is found that it has been expressly provided therein that, where processed fabrics itself is used as an input for further processing then, the provisions of the notification are not applicable. The denial of deemed credit to the appellants by the lower authorities in absence of the proper documentary evidence appears to be prima facie correct. However, to meet the end of justice, one more opportunity can be given to the appellants for production of all the documents which prove that they had received the grey fabric and consequently eligible to deemed credit. The matter may be reconsidered once again - Appeal allowed by way of remand. - Excise Appeal No.762-764 of 2012, Excise Appeal No. 821-832 of 2012 - A/10135-10149 /2023 - Dated:- 25-1-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Paresh Sheth Shri P D Rachchh, (Advocates) for the Appellant Shri G. Kirupanandan, Superintendent (AR) for the Respondent ORDER The appellants have filed these 15 appeals against the impugned order-in-appeal dated 21-08-2012 passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 11AB of the Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004. Being aggrieved with the order appellants filed the appeals before the Commissioner (Appeals) who ,vide impugned order in-appeals rejected the appeals filed by the appellants and upheld the Order-In-Original dated 19.11.2011. Hence the appellants are before us. 03. Learned Counsel Shri P.D. Rachchh appearing on behalf of the appellants submits that sole issue to be decided in the instant cases is whether benefits of deemed credit under the following Notification can be extended to the Appellants in terms of Explanation 3 to the said Notifications. Notification No. 28/2000-CE(NT) dated 31.03.2000 Notification No. 7/2001-CE(NT) dated 31.03.2001 as amended Notification No. 53/2001-CE (NT) dated 29.06.2001 Notification No. 6/2002-CE (NT) dated 01.03.2002 as amended It is the case of the revenue that appellants had received Cotton Printed Fabrics, therefore as per Explanation 3 to the said Notification benefit of said Notification cannot be extended to the appellants. Appellants had received Cotton Grey Fabrics and since they were having only facilities for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt benefit of deemed credit at such each stage of process, said explanation is inserted in the Notification so as to avoid any undue benefit by the manufacturer of final products. 3.2 Without prejudice, he also submits that it is not disputed by the revenue that such processors had carried out the process of bleaching and mercerizing without aid of power as intermediate Job Worker and therefore, same were exempted from levy of duty of excise vide Notification No. 6/2002-CE dated 01.03.2002 as amended (Sr. No. 112). Therefore, benefit of the said Notification viz. deemed credit was never availed by anyone at any stage before the appellants. 3.3 He further submits that if the said processes mentioned in Chapter Note 3 was carried out in different factory premises, such goods were liable to duty of excise and in that case for manufacture cotton belached fabric, cotton grey fabrics were inputs which was also processed fabric as notification nowhere defines the word processed fabrics, so that processor of Bleached fabric as per Explanation 3 was not entitled for benefit of said Notification. For the sake of argument it is assumed that Cotton Grey Fabrics is not processed fabric an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d credit to the manufacturer processors for all inputs and final products mentioned in the table with certain exception of products and not to processed fabric. In their humble view explanation cannot curtail or restrict the benefits granted by the Notification without any reference to the main contents of the Notification. No other provisions or contents of the Notifications provide like that therefore, there was no need to explain such things with the help of explanation. He placed reliance on decision in the case of Commissioner of Cus (Prv.), Amritsar Vs. Malwa Industries Ltd. 2009(235)ELT 214(SC). 3.7 He also submits that the revenue failed to appreciate that the said Notifications were issued under the provisions of Rule 57AK of the Central Excise Rules, 1944 / Rule 11 of the Cenvat Credit Rules, 2001 / Rule 11 of Cenvat Credit Rules 2002, which very specifically provides that even if the declared inputs are not used directly by the manufacturer of final products declared in the said Notification, but are contained in the said Final Products, Cenvat Credit is allowable. Thus, in grey fabric and bleached mercerized fabric declared inputs Cotton Yarn of 5206, Chemicals, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be produced, the authority failed to consider that they were demanding documents after almost 10 years and the universal fact is that no businessman keeps records for 10 years. Even otherwise, since the Appellant was acting as job worker the said documents were the property of the merchant exporter and hence the said authority was supposed to inquire with Exporter and not from the appellant. From the documentary evidence produced and on the basis of statements recorded by the investigation officer it is crystal clear that the Appellants have received grey fabrics from the merchant exporter either in the premises or on instruction of the appellant the merchant exporter had directly forwarded to the Job Worker for bleaching and mercersing process where the control of said grey fabrics was of the Appellant and accordingly it can very well be said that the Appellant has not received processed fabrics accordingly Explanation 3 of the relevant notification would not be applicable, consequently the Appellants would be eligible for deemed credit under the respective notification. 04. The Learned Counsel Shri Paresh Sheth appearing on behalf of the appellants i.e M/s Deepak Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 214/86 and the procedure for Job working not being intimated and permission taken are not issue in which the benefit of job work could be denied, following the decisions in the case of---------------------. From the above finding of tribunal it is clear that the tribunal has given direction to verify the facts that Appellants have received grey fabrics or not if received grant the benefit of notifications. However ongoing through the finding of both adjudicating authority and documents submitted by the appellants we find that appellants have failed to produce authentic documents regarding the receipts of grey fabrics. No original copies of bills/ invoices and transport documents related to the receipts of grey fabrics are available with any of the appellant. 6.1 Further, ongoing through the relevant Explanation of the Notifications we find that it has been expressly provided therein that, where processed fabrics itself is used as an input for further processing then, the provisions of the notification are not applicable. 6.2 We find that the denial of deemed credit to the appellants by the lower authorities in absence of the proper documentary evidence app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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