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TMI Blog2002 (8) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... does not manufacture and it does not have the facilities (including plant and equipment) to manufacture such POY or single yarn falling under Chapter sub-heading 5402.42. The present appeal is in respect of the Naroda unit. It is the case of the appellant that part of the POY so manufactured at Patalganga and Hazira units are cleared on payment of full duty (aggregating 34.5% ad valorem) and are received at Naroda unit. The said full duty paid POY or single yarn is then utilised by the Naroda unit for texturising. The said texturised yarn is either (i) cleared on payment of appropriate duty for sale, or (ii) cleared for export under bond; or (iii) consumed captively for manufacture of fabrics availing of applicable exemptions without payment of duty; or (iv) cleared on payment of appropriate duty for twisting and/or dyeing. The various operations are duly recorded in the statutory records maintained by the appellants in excise records. The department felt that there has been certain violation of the Central Excise Act and Rules, is failed to mention in the classification list therefore the appellant could not have claimed the exemption notification 4/97 as amended from time to time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 67/95-C.E., dated 16-3-95 once a product/commodity is exempted from whole of duty of excise the assessee is not permitted to pay Central Excise Duty on such exempted product/commodity on their own volition. And if they pay willingly such duty. It may be treated as deposit of duty and not duty charged or paid in view of Section 3 of Central Excise Act, 1944. From the facts, narrated above, it is observed that the exemption as claimed by the party is not at all admissible to them and hence the classification declaration of dyed, printed, bleached or mercerised yarn. Whether single, multiple (folded) or cabled yarn manufactured by M/s. Reliance Industries Ltd. Ahmedabad is required to be revised to the extent that the duty at the rate of 30% ad valorem. (BED) + 15% of BED (1 1A) is required to be levied on said yarn instead of Rs. 6 per kg. in view of entry No. 116A of Notification No. 4/97, dated 1-3-97 as amended from time to time". 3. The appellants filed its replies to various show cause notices contending inter alia that the claim of exemption under the notification 4/97 as amended from time to time is in order. The case of the appellant is the entire matter ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw twisted or textured yarn" in item 116B mentioned in notification 19/97 he had nothing to say but emphasises that the absence of the words in item 116A is with which we are concerned. He maintained that this words were redundant as observed by the Commissioner (Appeals). He also refers to definition of the word "textured yarn" defined in Mc Graw Hill Dictionary as meaning "A generic designation for continuous filament manufactured yarns which are processed to give them a hand and appearance distinct from untreated yarn". 6. We have considered the rival submissions. The facts are very clear that the Naroda unit gets POY from Patalganga and Hazira units. It only texturised and dyes the said yarn. On each stage, they pay the duty, even though there were in existence some exemption notifications. This has not been denied in the show cause notice. The show cause notice only emphasises the fact that they have undyed polyester filament used captively for further manufacture of dyed polyester filament yarn is exempted from whole of duty of excise by virtue of notification 67/95. Once a product is exempted from whole of duty of excise the assessee is not permitted to pay Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed by the statute, and secondly the rate granted by exemption notification, which in any case can not be equal to or more than the duty prescribed in the statute and always has to be less including nil". 8. We now go to the next point at page 235 of the paper book which deals with the finding of the Commissioner (Appeals). He has held as follows : "It is, thus, clear that as per appellants own admission, they are undertaking the process of texturing the POY in the same factory in which the process of dying etc. is being undertaken. Based on this fact, let us see whether they have the facilities (including plant equipment) for producing single yarn. As per general explanatory notes under Section XI under the Heading "Yarns", single yarn has been defined as under :- Single Yarn means yarns composed either of: (a) Staple fibres, usually held together by twist (spun yarns) or of (b) One filament (monofilament) of headings 54.02 to 54.05, or two or more filaments (multifilament) of heading 54.02 or 54.03, held together, with or without twist (continuous yarns) Seeing in the context of the above definition of single yarn, twisted or textured yarn is also called ..... X X X X Extracts X X X X X X X X Extracts X X X X
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