TMI Blog2015 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... inal authority after following due process of law confirmed the demand of ₹ 2,52,223/- along with interest and also imposed penalty of ₹ 2,52,223/- under rule 25 of Central Excise Rules 2002. Commissioner (Appeals) upheld the said order-in-original. - It is quite clear that department had made efforts to ascertain whether said goods were exported but it could not be confirmed by Assistant Commissioner Customs CFS Mulund. It is the responsibility of exporter submit valid proof of export in time which he failed to submit. Rather he has blamed the department for failure in internal communication. Government observes that applicant exporter has failed to submit valid proof of export and therefore demand of duty is rightly confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shipping Bill No. 7154864 dated 15.09.2009 but unfortunately, they have lost the original and duplicate copies of ARE-1. Since the original and duplicate of ARE-1 duly certified by the Customs Authority is an evidence of actual exportation of goods and same is vital document for acceptance of proof of export and same was not submitted, a show cause notice dated 09.09.2010 was issued seeking to demand the duty involved on the goods exported along with interest etc. After following due process of law, adjudicating authority vide impugned order-in-original, confirmed the duty demand of ₹ 2,52,223/- along with interest. Personal penalty of equal amount was also imposed under rule 25 of Central Excise Rules, 2002. 3. Being aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place to another and the employee dealing with the matter was absent. This led to mix up of the records with other things. The applicant was rendered helpless as the entire case record and relevant documents went missing. 4.5 The Commissioner (Appeals) erred in rejecting the application for condonation of delay' which has led to denial of substantial justice. 4.6 The applicant submits that all the evidences, put together viz. the. Central Excise invoice, the commercial invoice, shipping bill, the bank realization certificate prove beyond doubt that the goods have been exported. Veracity of the circumstances in which the ARE-1-was lost, has not been doubted. Therefore insistence on production of ARE-1-is unfair. 4.7 Descrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of export is proved by other means. The law is settled now that substantive benefit cannot be denied for procedural lapses. 4.11 It is submitted that the circumstances do not warrant penalty equal to the duty. There is no indication of any intentional breach by the applicant. There is no mens rea alleged or found. The applicant is a genuine exporter and loss of document is not an occurrence that should be so harshly penalized. 5. Personal hearing was scheduled in this case on 7.8.2013, 19.09.2013 and 11.03.2014. Nobody has attended hearings on said dates, on behalf of the applicant as well as department. 6. Government has carefully gone through the relevant case records, oral written submissions and perused the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, dated 22.03.2010 after 4 months on 25.07.2010 Since the original and duplicate copies of ARE-1 were not submitted, reference was made to CFC Mulund to know the authenticity of shipping bill No.7154864 dated 15.09.2009 under which said goods were claimed to be exported. The Assistant Commissioner, CFS Mulund vide letter dated 21. 12.2010 informed that said shipping bill pertained to CFS Mulund however due to non-receipt of transference copy of shipping bill with part of EGM form exit port Navasheva, actual export cannot be confirmed. It is quite clear that department had made efforts to ascertain whether said goods were exported but it could not be confirmed by Assistant Commissioner Customs CFS Mulund. It is the responsibility of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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