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TMI Blog2004 (1) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not able to establish who manufactured them even though there is a clear admission on the part of the person that the fabrics are non-duty paid, is the question. Such an action may lead to absurd results. More over what is admitted need not be proved aliunde. Proof of a fact in issue may be by direct evidence as well as by circumstantial evidence. By circumstantial evidence is meant, proof of other relevant facts from which the fact in issue may be inferred. In quasi criminal cases prima facie doubt is sufficient to shift the onus to the assessee or accused Narasinga Muthu Chettiar [ 1948 (4) TMI 1 - MADRAS HIGH COURT] . There is sufficient circumstantial evidence in this case to establish the non-duty paid character of the fabrics. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. The order of the Commissioner (Appeals) is set aside. - Shri Moheb Ali M., Member (T) [Order]. - The Revenue's appeal is against the order of the Commissioner (Appeals), Surat, who in the impugned order set aside the order of the original authority. 2.The facts briefly are that the Central Excise officers conducted a search of the shop premises of M/s. N.D. Textiles. The proprietor of the shop is one N.R. Kamra. He was present during the search. He is engaged in the purchase and sale of MMF. He received fabrics from different mills since March, 1995. When the stock of fabrics was challenged it was found that Rs. 9,724.50 L.mts of MMF was in excess of the book balance. He explained that he purchased grey fabrics from the open market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer and that he had deposited the duty involved. A show cause notice was issued. No reply was received. A personal hearing was given but none turned up on behalf of M/s. N.D. Textiles. The Assistant Commissioner adjudicated the case ex parte. He confiscate the fabrics found in excess of the stock; confirmed Central Excise duty of Rs. 24,310/- paid vide TR6 challan and the one paid this various cheques under Rule 9(2), imposed a penalty of Rs. 24,310/- under Rule 209A and imposed a penalty Rs. 5,000/- on the appellant. 3.In appeal, the Commissioner (Appeals) set aside the order. He observed that the statements of the proprietor were not voluntary, the statements were written in English and were stereo typed, the department did not esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in case of Bajrang Gopilal v. M.N. Balkundri and others 1986 (25) E.L.T. 609 (S.C.) who while upholding the order of the High Court ruled that in a case where cloth is manufactured in power-looms out of the yarn supplied by someone who owns it, it is the supplier of yarn who is the manufacturer and therefore is liable to pay duty. The department argues that in the present case N.D. Textiles is the purchaser (supplier) of the grey fabric and he got it processed through various mills by paying only labour charges and so he is the manufacturer who has to discharge the duty liability. The department rightly demanded the duty from the shopkeeper and imposed penalty on him. 5.Heard the ld. SDR. None appeared for the respondent. 6.It is a car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish the non-duty paid character of the fabrics. 7.The Commissioner (Appeals) cast doubts on the statements given by the respondent. The respondent himself did not cast any such doubts during the adjudication proceedings. He did not even reply to the show cause notice. Nor did he appear for a personal hearing. He did not retract any of his statements. It is not understood how the Commissioner (Appeals) concludes that the statements are dictated. Viewed in the light of the fact that the respondent had been paying duty on the goods involved by cheques, I hardly see any reason in the Commissioner (Appeals)'s finding that the statements made by the respondent are not voluntary. 8.The Commissioner (Appeals) at one stage says that the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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