TaxTMI 
TaxTMI 
2008 (9) TMI 325
X X X X Extracts X X X X
X X X X Extracts X X X X
....penalty of identical amount in terms of Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 on the allegations and findings of domestic clearance of duty free procured partially oriented yarn, instead of utilizing the same in the manufacture of the goods to be exported. In addition interest also stands confirmed against them in terms of the provisions of Section 11AB of the Central Excise Act, 1944. Further, penalty of Rs.20 lakhs stands imposed upon the two partners Shri Jayprakash Motwani and Shri Iqbal J. Memon of M/s. Akash Fabrics. In addition penalty of Rs.10 lakhs each stands imposed upon M/s. Shree Ram Synthetics, Surat and its parther Shri Pawankumar R. Bansal. 2. We have heard Shri B....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... conning oil for twisting was being used by them. He further deposed that the texturised yam made out of the POY was being supplied to another 100% EOU M/s. Shiv Processors. He also submitted that wherever rewarehousing certificates have not been received from M/s. Shiv Processors, they would pay the duty. Subsequently, the said appellant also deposited an amount of Rs.10,41,530/- towards Central Excise duty liability on account of shortage of raw material found on the day of search and on account of the dispatches made to M/s. Shiv Processors for which re-warehousing certificates were received. 5. Subsequently, statement of Shri Khaniya Lal Gautam, Fitter-cum-Master of M/s. Akash Fabrics was recorded admitting that only one texturising ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was in the name of M/s. Associated Plastic Industries. Even the details of the electricity bills raised for the period were scrutinized and it was found that the electricity consumption by M/s. Akash Fabrics for manufacture of the finished goods was much on the lower side and was not sufficient to manufacture the quantity of fabrics shown to have been manufactured by them. 8. It was further found by the Revenue that all the sales made by M/s. Filatex India Ltd. and other manufacturers of POY against CT-3 certificates were under the dealership of one M/s. Shree Ram Synthetics. The premises of the said dealer was searched on 10-12-2003 and certain records were seized under a panchnama. Inasmuch Shri Pawankumar R. Bansal, Partner of the sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned order passed by Commissioner. 10. We have appreciated the submissions made by both the sides and have gone through the impugned order. The appellant's main contention is that the entire case of the Revenue is based upon the statements of various persons, mainly the statement of the dealer of POY, who has not been offered for cross-examination and there is no other corroborative evidences to establish that POY has been diverted by them in the local market. On the other hand, it is the Revenue's contention that the investigations conducted by the Revenue clearly revealed that POY was not put to its intended use and was sold in the market. 11. We find that there is no impressive rebuttal to the fact that one texturising machine wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the further clearance of goods by M/s. Shiv Processors to M/s. Neeraj Exim Pvt. Ltd. never took place. The statements of various transporters reflected in the transport documents have admitted having never transported the goods from the factory of M/s. Shiv Processors to M/s. Neeraj Exim Pvt. Ltd. To that extent, we find that the statements of various persons corroborate such other and the appellant's grievance that there is no corroboration to the evidences of clandestine removal cannot be upheld. 13. The last and the most important evidence against the appellant is the records seized from the premises of M/s. Shree Ram Synthetics and from the car of Shri Pawankumar Bansal and his statements recorded on various dates. As discussed in d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rters showing non-transport of the goods from the factory of M/s. Shiv Processors to M/s. Neeraj Exim Pvt. Ltd., the scrutiny of the seized records from the premise of M/s. Shree Ram Synthetics and statement of Shri Pawankumar Bansal, non-working condition of machines, the electricity bills showing less consumption, all constitute substantial evidence to hold that the duty free POY received by the appellant was not actually put to use for manufacture of goods to be exported but was diverted in the local market. We accordingly uphold the impugned order, in so far the same relates to confirmation of demand of duty and interest against M/s. Akash Fabrics and imposition of penalty upon them. Inasmuch as penalty to the extent of 100% stands impo....