2000 (3) TMI 233

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.... We have also heard the departmental representative in reply. 2. Penalty has been imposed on M/s. Akai Impex under the Customs Act and Central Excise Act, and each of the applicants before us. In the impugned order, the Commissioner has found that M/s. Akai Impex was a 100% Export Oriented Unit (EOU) and entitled to the benefit of Notification 1/95. This notification exempts from excise duty goods intended to be exported. The exemption is also available to such goods despatched to another EOU for further processing and manufacturing by that unit. The Commissioner finds that four consignments of polyester yarn which was texturised by this applicant were purportedly shown to have delivered to M/s. Ratan Raj Texturising Pvt. Ltd., an 1....

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....he hearing, by its administrative manager. He emphasises that there is no absolute right of cross-examination provided in the Customs Act, citing the judgment of the Calcutta High Court in Tapan Kumar Biswas v. Union of India - 1996 (63) ECR 546, which holds that there is no such right granted. In that situation, he contends, the presumption is that cross-examination cannot be granted unless proper grounds are made out justifying such cross-examination. Commissioner has observed that such grounds are not being made out. He therefore opposed the grant of waiver on this count. 5. We are, prima facie, unable to accept the contention that there has been any failure of principles of natural justice. It is now settled that cross-examinati....

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...., the advocate for the applicant stated that capital works for setting up a plant of the value of Rs. 100 crores is still going on. 7. We, however, find force in the contentions of the common advocate for the applicants that the Commissioner has not dealt with the submissions made before him that the yarn was texturised out indigenously produced polyester yarn and therefore customs duty will not be applicable. The Commissioner is silent on this aspect. Prima facie, therefore we find that a case for the applicant with regard to deposit of customs duty and penalties imposed under the Customs Act. In any event the excise duty demanded has been already paid. 8. We also accept the submission made that there is a prima facie case ....