2007 (9) TMI 467

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....remanded back to   him   by   the   CESTAT   vide   its   order   dated   19-7-2004. The remand order of the Tribunal was very categorical, which reads as follows :- "10. In so far viscose yarn is concerned the appellants procure it in hank form, dye it and then reel it on smaller cones. The learned Advocate argued that yarn in hank form subjected to this process is exempt from payment of duty as per serial No. 5 of Notification No. 35/95. He argues that viscose yarn in hank form when dyed is not marketable and becomes so only when it is reeled as such and such reeled yarn is subjected to Nil rate of duty as per Notification No. 35/95. We are unable....

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....mposed under Rule 173Q is reduced to Rs. 2.00 lakhs. (e)   The appellant shall pay the duty on viscose yarn as and when it is worked out and indicated to him by the department." 3. Pursuant to above mentioned remand, the adjudicating authority took up the matter for disposal. While arriving on the conclusion of the confirmation of demand of the duty and imposition of interest in respect of Art Silk Embroidery thread (Viscose thread), the adjudicating authority has held as under: - "19. I have also carefully gone through the said financial statement of the appellant-assessee for the year ended 31-3-1996 and also seen the para of the Schedule N to the said statement. It is seen from the Para 8(ii)(c) that there ha....

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....ion so. In view thereof, I am in complete agreement with the quantification of the demand, so communicated." 4. As against the above findings, learned Advocate appearing for the appellants draws my attention to balance sheet on which the reliance was placed. It is his submission that the adjudicating authority has considered only the production portion, as indicated in the balance sheet and has not considered the fact that there was a closing balance of the very same product indicated in the balance sheet. It is his submission that if the adjudicating authority is considering the entries as relevant in schedule of the balance sheet, then he should also consider the fact that there is a closing balance on 31-3-1996. It is his submiss....

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....k Embroidery thread clandestinely cleared during 1995-96 works out to Rs. 40,18,686/- BED and Rs. 6,02,803/- AED as shown in the statement enclosed as Annexure-W and the same is recoverable from M/s. Seagull." It can be seen from the above reproduced portion, that the period in question in this case is from 1-4-1995 to 31-3-1996. Hence, the period in question being as on 31st March 1996, it has to be seen whether there was any clandestine removal. To come to this conclusion, I have to see the second angle. 7. The second angle in this case is that the ld. Commissioner has confirmed the demand of the duty based on the figures in balance sheet for the year ending 31-3-1996 and came to the conclusion that the appellants had sold 14.5....