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2015 (12) TMI 1350 - CESTAT AHMEDABAD

2015 (12) TMI 1350 - CESTAT AHMEDABAD - 2016 (335) E.L.T. 567 (Tri. - Ahmd.) - Export of goods without payment of duty - procedure not followed - demand was raised for non-furnishing of export documents - Eligibility of the benefit of exemption Notification No 125/84-CE dtd 25.5.1994 - Held that:- 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 proof of export. The goods were cleare .....

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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. It is not a fit case for imposition of penalty under Rule 25(1). Sub Rule (2) of Rule 25 provides that notwithst .....

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in favour of assessee. - Appeal No. : E/388,389/2008 - ORDER No. A/11857-11858/2015 - Dated:- 2-11-2015 - Mr. P.K. Das, Member (Judicial) And Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri W Christian, Advocate For the Respondent : Shri S K Shukla, Authorised Representative ORDER Per : Mr.P.K. Das, The relevant facts of the case, in brief, are that M/s National Impex, the appellant is a 100% EOU engaged in the manufacture of Polyester Dupatta and Scarves. The appellant exported th .....

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s 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 c .....

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ion benefit would be denied if the Goods allowed to be sold in India . He submits that in the present case, the goods were not allowed to be sold in India by the Development Commissioner. It is his contention that even though goods were clandestinely removed, exemption notification cannot be denied. 3. He relied upon the decision of the Tribunal in the case of Deccan Granites Ltd vs CCE, Hyderabad - 2003.151.ELT.582 (Tri.Bang.) which was upheld by the Hon ble Andhra Pradesh High Court as reporte .....

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he Revenue reiterates the findings of the Adjudicating Authority . He submits that the records were seized 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 susta .....

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E and 125/84-CE dtd 26.5.1984. The appellant submitted before the Tribunal that though they have prepared the said two ARE-1s but the same was subsequently cancelled. But, there is no corresponding entries were made by them in their export register. The Learned Advocate drew the attention of the Bench, the letter dtd 28.4.2003 of the Superintendent of Customs. It is seen that the Superintendent of Custom had detained some register for verification. We find from the adjudication order that the ma .....

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t. We find that the Tribunal remanded the matter two times by order dtd 23.11.2004 and 20.2.2007. There is no dispute on the facts that the appellant cleared the goods under cover of ARE-1s without payment of duty. It is not recorded in the export register. The appellant failed to provide any evidence that two ARE-1s were cancelled. The plea of seizure 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 eligibilit .....

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er Section 3 of the Central Excises and Salt Act, 1944. Proviso to said Notification is to the effect that the exemption contained in this Notification shall not apply to such goods if allowed to be sold in India. In as much as the disputed goods were not allowed to be sold in India, they would, in our prima facie view, be entitled to exemption as provided in the said Notification. However, we find that though the above plea was raised before the adjudicating authority, the same was not consider .....

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Development Authority. The relevant portion of the exemption Notification is reproduced below: Exemption to goods produced in a hundred percent export oriented undertaking In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts all excisable goods produced, or manufactured in a hundred percent export oriented undertaking from the whole of duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944 .....

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roof 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 proof of export. The goods were cleared in 2003. The appellant had not furnished any corroborative evidence to establish the export of the goods till date. Hence, the demand of duty is .....

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e basis of the shortage of the goods. The Hon ble Andhra Pradesh High Court in the case Deccan Granite Ltd (supra) observed that on the occasion to levy excise duty vis-vis a 100% EOU would arise if only any instances of sale of the product is noticed. It is further observed that there was not a single incident of sale of the product into DTA was pointed out. The expression Goods if allowed to be sold in India in the proviso to the said Notification would cover the goods sold on the basis of per .....

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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 fai .....

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