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TMI Blog2013 (8) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... hwar, Surat-II. 2. Brief facts of the cases are that the applicant had cleared the goods for export viz. 40,000.00 Kgs of Chlorinated Paraffin wax valuated at Rs. 15,75,200/- vide ARE-1 No. JHA/KLJ/104/07-08, dated 12-9-2007 under letter of undertaking (LUT) under Rule 19 of Central Excise Rules, 2002. As per provision of the said Rule 19 read with Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001, as amended, the applicant was required to submit the proof of export to the authority with whom they furnished the LUT, within six months from the date of clearance from the factory and in the event of failure, they are required to pay the amount of duty due on the said goods along with interest. 2.1 The applicant did not submit the proof o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant filed appeal before Commissioner (Appeals) who upheld the demand of duty along with interest, but reduced the penalty to Rs. 50,000/-. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 In the present case, the applicant submit that they have exported the consignment of the finished goods under ARE-1 No. JHA/KLJ/104/07-08 dated 12-9-2007, within a period of six months from the date of clearance from the factory premises. This fact has not been disputed at all either in the SCN or in the order, under appeal. As a matter of fact, the document as proof of exports such as Bill of La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bond accepting authority to get the matter verified from the Customs authorities at the place of export and may call for collateral evidences to satisfy that the goods actually have been exported. It was also mentioned in the reply that "such request has been made with a request to your good self, only with a view that the positive response can be got from the Customs authorities if such request is made by the proper Central Excise Authority". 4.4 As regard the contention of the Commissioner (A) that it cannot be ascertained, at this belated stage, as to whether the goods cleared by the appellant under LUT without payment of duty, have actually been exported, the applicant submit that this contention is not proper and correct as on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts, equal penalty under Rule 25 of CER, 2002 cannot be imposed. In series of judgments, the Hon'ble Supreme Court as well as the Tribunal has ruled that for imposition of penalty intention to evade payment of duty must be shown and in absence of it there is no justification to invoke penal provisions. 4.6 Further, the goods have already been exported as the same is quite evident from the collateral evidences produced before the Central Excise department. In the circumstances, if duty cannot be demanded, the question of imposition of even token penalty does not arise. 5. Personal hearing scheduled in this case on 1-6-2012 was attended by Shri Vinay Kansara Advocate on behalf of the applicant who reiterated the grounds of revision applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal to duty to Rs. 50,000/-. The applicant's contention is that since export of goods is not disputed duty can not be demanded and there is no case for imposition of penalty. They submitted that the documents Bill of Lading, Mate receipt and BRC etc. have been submitted to department and the ARE-1, triplicate copy in question was forwarded to the Deputy/Assistant Commissioner of Central Excise Division-II Ankleshwar by the Range Superintendent. They admitted that only lapse on their part is non-submission of some documents i.e. original and duplicate copies of ARE-1 and shipping Bills. They further claimed that these documents were lying with the Customs Officer. 8. Government notes that as per provision of Rule 19 of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admitted this fact. Their contention that the said documents were lying with customs authority is not maintainable inasmuch as they failed to submit any evidence in support of their contention. The ARE-1 was prepared on 12-9-2007 and there is no reason that applicant could not produce the said documents even after the lapse of 5 years. They could have procured the said documents from Customs if they were available with them. Applicant has neither submitted the said documents till date which can prove the export of goods, nor made any effort to procure the same if they are with Customs. No documentary evidence is available to suggest that documents are with Customs. The Commissioner (Appeals) has discussed the entire issue in detail in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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