TMI Blog2015 (10) TMI 2614X X X X Extracts X X X X X X X X Extracts X X X X ..... export under Rule 18. If for any reason such an application is not found fit for use to remove the goods for export it should have been withdrawn or amended with the approval of the proper officer as laid down in Notification No. 43/2001, dated 26-6-2001. There is nothing on record to show that any such effort was made by the applicant. The applicant instead created a parallel set of statutory documents which is not laid down in Notification, therefore is not correct. Imposition of penalty u/s 11AC - Held that: - the order passed by Commissioner (Appeals) is erroneous and not maintainable, the question of imposition of penalty does not arise. Application rejected. - F. No. 195/916/2013-RA-CX - 132/2015-CX - Dated:- 16-10-2015 - Ms. Rimjhim Prasad, Joint Secretary Shri Uma Shankar Goenka, Director, for the Assessee. Shri Nilesh Kumar Rai, Assistant Commissioner, for the Department. ORDER This revision application is filed by M/s. Carter Container Co. Pvt. Ltd. (hereinafter referred to as applicant) against the Order-in-Appeal No. 49/Kol-V/2011, dated 4-5-2011 passed by Commissioner of Central Excise, (Appeals-I), Kolkata, with respect to Order-in-Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issionerate vide Order-in-Original No. 28/AC/Joka/Kol-V/Adjn/2009-10, dated 29-10-2009 passed the following order : - (1) Confirming the demand to the tune of ₹ 1,45,117/- and Education Cess of ₹ 2,902 under Section 11A(2) of the Central Excise Act, 1944. (2) Imposing a penalty of ₹ 1,48,019/- under Section 11AC of the Act ibid. (3) Levying interest at applicable rate under Section 11AB of the Central Excise Act, 1944. 3. Aggrieved by the said order, the applicant filed appeal before the Commissioner (Appeals-I) Kolkata, who vide Order-in-Appeal No. 49/Kol-V/2011, dated 4-5-2011 upheld the order of the adjudicating authority and rejected the appeal of the applicant. 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 That they initially exported the goods under ARE-1 No. EX/109/2005-06, dated 31-10-2009 under DEPB scheme. That in the absence of the Superintendent, Central Excise in the Range, the Inspector of Central Excise visited their factory and allowed the consignment of metal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other details namely, name of the consignee, weight, description of the goods everything were same. That in the shipping bill the export invoice number is there and the invoice will tally in respect of both ARE-1s. That it is a clear case of export of one consignment and there was no existence of other consignment. That all the relevant documents will prove that the goods are covered by the same invoice and there was no existence of two consignments in the present case. 4.6 That in the present case no evidence has been produced by the department that another consignment was sent by the applicant to the Dock for the export or any other goods taken out from the dock for export. That the Commissioner s contention that the goods cleared from the factory for export were not under proper documents to the port and the same goods were not covered by both ARE-1 is improper and incorrect. That only one consignment was sent by the applicant which was signed by the Customs officials and the demand of duty is apparently erroneous and is not maintainable. 4.7 That the export consignment under DEPB scheme actually was required to be countersigned by the Superintendent before removal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard by the CESTAT, Kolkata on 8-10-2013 and the CESTAT, Kolkata under its Order No. SO/71259/2013, dated 8-10-2013 dismissed the appeal petition was not maintainable before the CESTAT. The appeal petition actually was required to be filed before the Joint Secretary, Government of India, New Delhi. 5.2 That in the order of the CESTAT, Kolkata it was mentioned that the applicant was at liberty to pursue the matter before the proper forum. That it was unintentional mistake on the part of them to file the appeal petition before the CESTAT, has been dismissed is not maintainable. Therefore, the applicant files the Revision Application before the Joint Secretary, Government of India, New Delhi. 5.3 That the delay in the present case was entirely unintentional and the appeal petition before the CESTAT, Kolkata was filed within the scheduled time. 6. A show cause notice was also issued to the respondent Commissionerate on 2-7-2015, in response to which the following submissions have been made : 6.1 That Rule 19 of Central Excise Rules, 2002 read with Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 deals with rules and procedure for export without payment of duty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. UOI [2014 (305) E.L.T. 100 (All.)], Hon ble Allahabad High Court in Paras 31 32 very clearly mentioned that procedure laid down in notifications have to be strictly followed and are mandatory in nature. 6.7 That the applicant on its own opted for sealing under Central Excise Officer then without cancelling the same how can the applicant on his own decides to go for self-sealing without any information to department and that too on the pretext of doing so to avail particular export benefit. That once the department went for sealing under Central Excise Officer, unless applicant apply for cancellation, department have no way to switch to another ARE-1 for confirming export under self-sealing even if the new ARE-1 have same number. 6.8 That Hon ble Allahabad High Court in the case of M/s. VEE Excel Drugs Pharmaceuticals Pvt. Ltd. v. UOI in Para 24 has clearly mentioned that ignorance of law is no excuse to follow something which is required to be done by law in a particular manner. It is well established that when law requires something to be done in a particular manner, any other procedure adopted or the procedure deviated or not followed would be illegal inasmuch as, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before Tribunal 11-8-2011 C. Total time taken for filing appeal before Tribunal A-B = 85 days D. Date of communication of Tribunal s order 8-10-2013 E. Date of receipt of Revision Application 29-10-2013 F. Time taken to file Revision Application from receipt of Tribunal s order D-E = 12 days G. Total time taken from date of receipt of Order-in-Appeal in filing Revision Application excluding time lapsed in CESTAT C+F = 97 days. 9.1 Government notes that the Hon ble High Court of Gujarat in case of M/s. Choice Laboratory vide order dated 15-9-2011 [2015 (315) E.L.T. 197 (Guj.), Hon ble High Court of Delhi in case of M/s. High Polymers Ltd. vide order dated 4-8-2011 and Hon ble Bombay High Court in case of UOI (Revisionary Authority) v. M/s. EPCOS India Pvt. Ltd Anr. [2013 (290) E.L.T. 364 (Bom.)] in order dated 25-4-2012 have held that the period spent in prosecuting the proceedings bona-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals-I) Kolkata, who vide Order-in-Appeal No. 49/Kol-V/2011, dated 4-5-2011 upheld the order of the adjudicating authority and rejected the appeal of the applicant. Now the applicant has filed this revision application on the grounds stated in Para 4 above. 11. Government notes that it is an uncontested fact that impugned goods have been cleared under Rule 19 of Central Excise Rules, 2002 without payment of Central Excise Duty, under LUT for the purpose of their exportation out of India. The applicant is contesting that they initially exported the goods under ARE-1 No. EX/109/2005-06, dated 31-10-2009 under DEPB scheme, duly sealed and signed by the Inspector of Central Excise. At the port of export, the Customs officials refused to sign the same on the ground that the ARE-1 was not signed by the Superintendent, Central Excise. That being advised by the Customs authorities the applicant prepared another ARE-1 with the same number and date and same details and the same was produced before the Customs authorities as self-sealing in order to export the goods expeditiously. That the Customs authorities after being satisfied allowed the export and signed the duplicate copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an application made to the proper officer for removal of goods for export under Rule 18. If for any reason such an application is not found fit for use to remove the goods for export it should have been withdrawn or amended with the approval of the proper officer as laid down in Notification No. 43/2001, dated 26-6-2001. There is nothing on record to show that any such effort was made by the applicant. The applicant instead created a parallel set of statutory documents which is not laid down in Notification, therefore is not correct. 13. Further, on scrutiny of records the Government observes that although the number of ARE-1 was same but the details mentioned on the ARE-1 in respect of value and weight were different. The ARE-1 sealed by the Central Excise Officer was ₹ 9,06,984/- duty involving ₹ 1,45,117/- whereas in respect of self-sealed ARE-1 the value of goods was shown as ₹ 9,07,054 and duty involved was ₹ 1,45,129. Similarly there was difference in weighment of goods cleared on the two separate ARE-1 of having 5387.850 Kgs. and 5387.650 Kgs. respectively. So it cannot be clearly established that the goods cleared on ARE-1 duly certified by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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