Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2022 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 1061 - AT - Central ExciseEOU - achievement of NFE - Demand of Central Excise Duty alongwith Interest and Penalty - Goods cleared directly and also through merchant exporters - it is alleged that in respect of the exports made through Merchant Exporters certain discrepancies such as on some of the shipping bills in respect of these exported goods, the status of the appellant EOU was not shown, in others, the name of the noticee and its status as an EOU was not mentioned - export of goods or not - third party clearances of goods without payment of central excise duty under invoices in DTA - Board's Circular number 03/ 91-Cus dated 24.01.1991 - HELD THAT:- The goods cleared by the appellant and exported through third party have been considered as clearance made in DTA, for making the demand of the duty for the reason that the documents filed for the export of goods did not indicated the name or the status of the Appellant. In view of the adjudicating authority, for this reason the goods which were cleared for exports did not fulfilled the requirement of the Board's Circular number 03/ 91-Cus dated 24.01.1991, and hence were clearance made in DTA - Commissioner admits on the basis of the documents submitted by the appellant that these goods were duly exported. Even the annexure to the show cause notices clearly show that all the goods were cleared against the ARE-1 and hence were cleared for exports only. Annexure to each of the show cause notice is an admission of the fact that goods were cleared for export from the premises of appellant. Also neither the show cause notice nor the impugned order state that the proof of export was not submitted by the appellant/ merchant exporter/ third party exporter, in any of the cases. When the goods were cleared for exports and proof of export submitted in each and every case, the demand made treating these goods to be cleared in DTA, is contrary to the provisions of the Rule 18 of the Central Excise Rules, 2002. In case of any unit whether an EOU or any DTA unit exporting the goods, the proof of export once submitted establishes the factum of export. Impugned order could not have proceeded to demand the Central Excise Duty contrary to the provisions of the Rule 18. It could have been the case of the revenue that in view of the Circular of 1991 and of 2006, the benefit of export for the purpose of determining NFE, for the purpose of evaluating the performance of the unit should have been denied. However the performance of the EOU’s is monitored by the Development Commissioner to whom the return showing the export turnover is furnished by the unit in the manner as prescribed. There is not even a whisper in the show cause notice or in the impugned order, that Development Commissioner has while evaluating the export performance of the unit, has denied the benefit of export in respect of these consignments cleared by the appellant in terms of para 6.10 of the Import Export Policy, 2009-14 read with para 6.18 of the Handbook of Procedures, 2009-14. Thus, if the benefit is provided in terms of the statutory provision, the same can be circumscribed/ denied by taking resort to a circular. Thus, there are no merits in the demand made - appeal allowed.
|