TaxTMI 
TaxTMI 
2011 (3) TMI 332
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned order, Commissioner has also confirmed demand of duty of Rs. 6,56,46,060/- against M/s. Marvel Fashions along with imposition of penalties upon them. However, we find that appeal of M/s. Marvel Fashions stand dismissed by the Tribunal on account of non compliance with the stay order. As such, their appeal, though arising out of the same impugned order, is not being dealt with on merits. 3. The facts of the case in all the appellant's appeals are identical. The same, in a nut shell are being reproduced as below :- (a) All the goods shown to have been consigned by M/s. Marvel Fashion to several 100% EOUs under ARE3s were actually diverted by M/s. Marvel in the local market in the guise of supply to different 100% EOUs. They were showing these supplies only in their records in order to misguide the department and to avail the duty exemption facility. (b) In the ARE3 wherein M/s. Marvel have shown the clearances of 100% Polyester Dyed/Printed Fabrics, they have diverted the imported fabrics, and in the ARE3s wherein they have shown clearances of 100% Polyester Dyed/Printed Duptta unstitched and 100% Polyester Dyed/Pri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) It is alleged that they had fabricated their records in order to enable M/s. Marvel to evade the Central Excise & Customs duty. It is contended by the department that the appellant was concealing the facts of not receiving the goods physically which they were showing as purchased and hence, they were dealing in respect of the goods which they knew or had reasons to believe were liable to confiscation under the provisions of Customs Act, 1962 and the Central Excise Rules, 1944, and thereby they have rendered themselves liable for penal action under Section 112(b) of the Customs Act, 1962 and Rule 26 of the Central Excise Rules, 2002. 4. Accordingly, M/s. Marvel Fashion and all the concerned 100% EOUs and other parties were served with show cause notice dated 1-12-2004. In the show cause notice, M/s. Marvel Fashions were proceeded with for recovery of all duties of Customs & Excise in respect of the imported and indigenous raw materials and duty of excise on finished goods. The present appellants were called upon to show cause against imposition of penalty under Section 112(b) of the Customs Act, 1962 read with Rule 26 of the Central Excise Rules, 2002. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hion was not in fact received by the present appellants i.e. 100% EOUs. As such, submits the learned DR that imposition of penalties upon them is justified. 7. After carefully considering the submission made by both sides and after having gone through the impugned order, we find that the main allegation and findings are against M/s. Marvel Fashion, who is an 100% Export Oriented Unit engaged in the manufacture of 100% Polyester Dyed/Printed fabrics, scarves, ready made garments etc. They have procured imported as also indigenous raw materials by availing the benefit of Notification No. 53/97-Cus., dated 3-4-1997 and No. 01/97-Central Excise dated 4-1-1997. The findings of the adjudicating authority as regards diversion of raw materials by the said M/s. Marvel Fashions, instead of using the same in the manufacture of the final products, are based upon the statements of partner and the excise incharge and authorized signatory of M/s. Marvel Fashions. Further, the reports from the RTO in respect of some of the vehicles claimed to have been used for transporting of goods revealed that either the registration numbers were fake or the vehicles were not having the capacity to carr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lying upon the statement of Marvel Fashion to arrive at a finding of non receipt of goods by 100% EOU is relying upon the statement of a co-noticee. The said reliance on the statement of a co-noticee, without any other corroborative evidence, is neither justified nor warranted. Surprisingly, the officers conducting investigations at the end of Marvel Fashion have not extended their investigation at the end of recipient 100% EOU. No statement of their representative was recorded and they were not permitted to establish the receipt of the goods by them. We note that the fact of the goods having been reflected in the statutory records maintained by 100% EOU is not being doubted or disputed by the Revenue. However, the Commissioner has observed that when the transport documents used by M/s. Marvel Fashion are in the name of fictitious transport company and are not genuine, there is no way that the goods covered by the ARE-3s could have been received when the same were not transported. However, the appellants have challenged the above finding on the ground that they are not concerned with the genuineness of the documents maintained by M/s. Marvel Fashion, as long as the goods are receiv....