TMI Blog2015 (12) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty is justified. - demand was raised for non-furnishing of export documents. The goods were cleared for export without payment of duty under 19 of the said Rules. As per the provisions of law, if the appellant fails to furnish the export documents they are liable to pay duty. There is no ingredient available on record to invoke Section 11AC in this case. So, the imposition of penalty under Section 11AC is not warranted. At this stage, the Learned Authorised Representative submits that the penalty was imposed under Rule 25(1) of the Central Excise Rule 2002. The appellant cleared the goods under the Bond without payment of duty and therefore, the appellants has to be pay the duty for failure to furnish the export documents. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,96,027/- under two ARE-1s alongwith interest and imposed penalty of equal amount under Rule 25(1) of the Central Excise Rule 2002. It has also imposed penalty of ₹ 7,00,000/- on Shri Umar T Chamadia, partner of the appellant firm. 2. The Learned Advocate on behalf of the appellant submits that they have not exported the goods in respect of the said two ARE-1s. On 28.4.2003, the Central Excise officers seized the entire records. They requested the Adjudicating Authority to provide the copy of the seized documents to establish the cancellation of the ARE-1s from the record. It is submitted that the demand of duty cannot be confirmed without furnishing the seized records. He relied upon the decision of the Tribunal in the case of Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized in 2003. He submits that the Tribunal in the remand order had not given any direction to furnish the document. He drew the attention of the Bench to the Tribunal remand order. He further submits that it is a clear case of clandestine removal of the goods as the appellant failed to furnish the proof of export against the two ARE-1s and therefore, the demand of duty and penalty would be sustained. He also submits that the appellant had not taken permission for selling the goods to DTA and therefore the benefit of exemption Notification cannot be allowed. 5. After hearing both the sides and on perusal of the records, we find that it is a 3rd round of litigation. In earlier occasion, the Tribunal vide Final Order No.S/258-259/WZB/AHMD/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izure of the documents is without any basis. The case laws and the Board Circular would not be applicable in this case. 6. The next issue is eligibility of the benefit of exemption Notification No 125/84-CE dtd 25.5.1994. The Tribunal remanded this matter with specific observation as under: It is further seen that the appellants made alternative prayer that in any case, goods if allegedly cleared, would be fully exempted in terms of Notification No.124/84-CEdated 26.5.84. The said Notification exempts all the excisable goods produced or manufactured in a 100% Export Oriented undertaking from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944. Proviso to said Notification is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall not apply to such goods if allowed to be sold in India. 8. The notification exempted the goods from the whole of duty, manufactured in 100% EOU. The said exemption would not be applicable if such goods is allowed to be sold in India. Proviso to Notification No 125/84-CE (supra) makes it clear that, if the goods are cleared for home consumption, exemption benefit cannot be extended. It is well settled that the burden proof lies with the assessee for availment of benefit exemption notification to establish the goods were exported. In the present case, we find that the appellants cleared the goods under the cover of ARE-1s without payment of duty under Rule 19 of the Central Excise Rules 2002. The appellant failed to furnish the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exported and the appellant fails to furnish proof of export, the duty will be demanded on such goods. We find that there is no need to go into chargeability of duty of the goods, as it is not the case of the appellants. Hence the demands of duty alongwith interest is justified. 9. We agree that the submission of the Learned Advocate that there is no allegation of diversion of the goods into DTA and therefore imposition of penalty under Section 11AC cannot be sustained. We find that the demand was raised for non-furnishing of export documents. The goods were cleared for export without payment of duty under 19 of the said Rules. As per the provisions of law, if the appellant fails to furnish the export documents they are liable to pay d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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