TaxTMI 
TaxTMI 
2009 (6) TMI 763
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....demand has been confirmed on the ground that grey fabrics cleared by the appellant without payment of duty and sent to another 100% EOU on the basis of CT-3 certificate has been found not to have been sent by them. 2. Shri N.J. Gheewala, learned Consultant appearing on behalf of the appellant submits that the show cause notice issued on 16-12-05 is barred by limitation in view of the fact that the factory was visited on 13-2-02 and the show cause notice has been issued after 3 years. He also submits that the appellants are engaged in manufacture of grey fabrics from filament yarn and they have produced re-warehousing certificate in respect of all the 11 consignments cleared by them during November 2001 to February 2002 to another EO....
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....nery in the factory and the quality of the fabric was entirely different. (f) Further, the records produced by Patel brothers which show loom-wise production record also established that heavy fabrics which were claimed to have been cleared without payment of duty by the appellant were never manufactured in the factory premises. (g) The appellants produced a lease agreement for the period of 6 years and the Commissioner has found that lease agreement was for a period of 6 years and that too it was not registered and as per law, it is required to be registered. Further, the Panchnama clearly brought out that the factory was in de facto possession of two Patel brothers. (h) &....
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....lse, that cannot be a ground for defence for the appellant. 4. Countering the arguments put forth by the learned SDR, the learned Counsel submitted that he has submitted two letters from the transporter and both of them have clearly stated that they do not remember whether their trucks were has been used by the appellant, which go to show that the vehicles used were also trucks. Further, he also submits that the vehicle numbers were written by Excise clerk on being informed over phone and therefore there is a possibility of mistake. This point was countered by learned SDR to a query from the Bench how is that the Excise clerk was not writing vehicle number on the invoice after seeing the truck before the goods are cleared, the learn....
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....eement only on paper; the appellant also failed to contradict with proper evidence the statement of the loom Manager and Excise clerk who admitted that no yarn as shown by the appellant was ever received in the factory. The evidence gathered by the Revenue in the form of documents, and statements clearly show that the appellants has not manufactured fabric at all. Under these circumstances, we find that the appellant has not been able to make out even a prima facie case. As regards financial difficulty, we have to note that as a 100% EOU, the appellants had shown false manufacture and bogus clearances which leads to the conclusion that he has cleared the yarn purchased by him without payment of duty in domestic market. The profit by these i....