2017 (5) TMI 40

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..... xport to USA which were supervised by the Central Excise department during the stuffing operation and they were exported. On receipt of the goods in USA, appellant's customer noticed shortage of the goods and informed the appellant accordingly who in turn filed a FIR and claimed insurance. It is also on record that proof of export was filed by the appellant with the departmental authorities. Show-cause notice was issued to appellant demanding duty on the stolen goods, which were not physically exported, along with interest and penalties were also sought to be imposed. The adjudicating authority after following due process of law confirmed the demands and interest on the basis of B-17 Bonds undertaking given by appellant and also imposed .....

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..... f Notification No.43/2001-CE ((NT) dated 26.06.2001. 4. Learned D.R. on the other hand submits that appellant themselves had filed a FIR with the local Police Station indicating the names of the driver and the transport Company who had been involved in the theft which had occurred near Navi Mumbai when the goods were in transit. He would draw my attention to the paragraph 19 of the adjudication order for the purpose that the said paragraph reproduces the compliant lodged by the appellant which indicates that the driver of the vehicle and the transport company were engaged in theft of the finished goods hence the goods were not exported and the demand of duty with interest and penalty is correct. He would rely upon the decision of the Tribu .....

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..... In my considered view the claim of learned D.R. that the duty liability arises on the appellant is totally incorrect. On factual matrix I notice that the Revenue authorities have never disputed the fact that appellant had produced the proof of export to the authorities who had accepted the same. It is also not disputed that the ARE-1 forms were attested by customs authorities for the export of the goods. Just because appellant has lodged F.I.R for the short receipt of the goods by their clients in USA, would not mean that the goods were diverted to DTA and duty can be demanded. Ratio of the Division Bench decision of the Tribunal in the case of Sree Narasimha Textiles Ltd. (supra) is directly on the point wherein the Bench held as under:- .....

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