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M/s. Ess Kay International, M/s. Chirag Exports, M/s. Subal Exports Versus C.C. Amritsar

2015 (11) TMI 757 - CESTAT NEW DELHI

Waiver of pre deposit - import of goods against advance licence - diversion of goods - Held that:- In this case the allegation made against the applicants is that they have imported goods (duty free) and diverted into the open market on the basis of certain statements recorded during the course of investigation and on the fact that applicants were not having any manufacturing facility of the resultant product which were required to be exported by them. We have seen that initially it was alleged .....

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on job work basis and the export obligation can be discharged in the light of the decision of Hon ble High Court of Punjab and Haryana in the case of Rakesh Nayar (2010 (1) TMI 492 - PUNJAB & HARYANA HIGH COURT) and also pleaded the financial hardship. All these evidences or the contentions shall be considered at the final hearing of the case that the retracted statement cannot be basis of confirmation or demand or the applicants are not having manufacturing facility in their factory. - applica .....

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nfirmed against them along with interest and various penalties imposed on them. 2. As facts of all the three cases are common / identical, therefore, all the applications are taken up together for consideration for waiver of pre deposit. 3. The facts of the case are that the applicants were engaged in manufacture of yarn, shawl, blankets etc. by importing raw materials on the strength of advance license (duty free) for manufacturing of their final product and the resultant product was required t .....

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j of Jalandhar (owner of Sheetal group) of Industries was instrumental in fraudulent availment of Duty Exemption Entitlement certificate for import of duty free items and in conniving with Shri Rajender Arora by obtaining DEEC licenses in the name of their firms and after importing duty free raw material, the same were diverted in the domestic market instead of using the same for manufacturing and exporting the end product. In the background of this, DRI investigated the matter. Various statemen .....

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mestic market and the same has not been used in manufacturing of resultant product which was required to be exported. Further, it was also revealed in the investigation that the applicants were not having manufacturing facility for resultant product. Therefore, as the applicant were not having manufacturing facility, they cannot export the resultant product. Hence, they have failed to discharge their export obligation. In these circumstances, they are required to pay duty on the imported goods. .....

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intly or severely. Duty was also demanded from M/s. Chirag Export and Shri Rajinder Arora jointly or severely. Penalties on all the applicants were imposed. Aggrieved from the said order, the applicants filed appeal before this Tribunal. To entertain the appeal without pre-depositing the amount in dispute, the applicants filed applications for waiver of pre deposit which are being listed before us for consideration. 5. The Ld. Counsel for the applicants submits that in this case the applicants h .....

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een considered by this Tribunal in the case of Hiren R Kapadia reported in 2013-TIOL-198-Cestat-Mumbai again in the case of Rimjhim Ispat Ltd. Vs. CCE Kanpur-2013 (293) ELT 124 (Tri-Del) and in the case of Bharat J Barot vide Final order no. A/626-628/13/CSTB/Court-1 dated 09.04.2013. 6. He further submitted that the case of the Revenue is based on the various inculpatory statement of the applicants. In fact, all these statements have been retracted on the first available opportunity. Statement .....

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ort is also available on record. Therefore, the decision in the case of Vinod Solanki (Supra) is not applicable to the facts of this case. Moreover, the decision in the case of Kalvert Foods India Ltd. 2001 (270) ELT 643 (SC) and Telestar Travels Pvt. Ltd. 2013 (289) ELT 3 (SC) are not applicable to the facts of this case as statement have been retracted by the applicants on first available opportunity. 7. He further submitted that next allegation of the Revenue is that applicants were not havin .....

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rified by the visiting team on 06.05.2005 and it was found that Subal export was having the facility of waving of blankets and shawls and it has been recorded that the applicant was having power looms and binding machines which were installed in their factory. He further submitted that M/s. Chirag export was also having spinning unit at Amritsar whereas they have spun the yarn from the raw material. Further, it is not the case of DRI that M/s. Ess Kay International and M/s. Chirag Export had cle .....

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bills at the port of dispatch. No such evidence has been provided to the applicants and mentioned in show cause notice and this allegation is only a bald allegation. He further submits that as the applicants have discharged export obligation and BRCs have been received after due examination of these documents, the DGFT has accepted the export obligation and issued redemption certificates. Therefore, there is no scope of confirmation of any amount of duty. All these certificates were produced be .....

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of Rakesh Nayyar reported in 2010 (255) ELT 234 (P & H). He also submitted that the show cause notice has alleged that Shri Sheetal Kumar Vij was the kingpin in divergent of goods in open market but the adjudicating authority has exonerated him and the said order was challenged by the Revenue before this Tribunal but the appeal filed by the revenue was dismissed by this Tribunal vide Final order no. 53372/14 dated 26.08.2014. 9. Further, he submitted that the applicants are running in losse .....

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been supported by the evidence that the applicants were not having any manufacturing unit and licenses were issued to the applicants under the actual user condition and it has been established that the applicants were not having any manufacturing facility and the licenses were not endorsed in the name of the job worker also, who manufactured the resultant product. Therefore, the applicants have failed to make out a case of complete waiver of pre deposit. He further submits that the duty has bee .....

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er thorough investigation analyzing the documents records it was found that the applicants were involved in the activity of diversion of imported goods in the open market which was imported duty free. In that circumstances, the adjudicating authority has rightly confirmed the demand against the applicants. 11. Heard the parties. Considered the submission. 12. In this case the allegation made against the applicants is that they have imported goods (duty free) and diverted into the open market on .....

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licants and that part of the order has attained finality. The contention of the ld. Counsel is that they have retracted the inculpatory statements on first available opportunity and no consideration was given by the Adjudicating authority to that effect. It is also the contention of the Ld. Counsel that they were having manufacturing facility of the resultant product in their factory and in some cases some goods have been manufactured on job work basis by them and to that effect they produced ce .....

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