TMI Blog2017 (12) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. Revenue, in the present case, has arrived at the above finding on the basis of surmises and conjunctures on the sole ground that ARE-1 Nos.19 & 20 were not mentioned in the shipping bills. It is seen that the appellant had produced evidences on the record to show that the said goods cleared under the said ARE-1 were duly reflected in the invoices issued by the parent Unit for export, though the same were not mentioned in the shipping bills. The order of learned Member (Technical) is indeed on the procedural technical violations and does not conclude on the basis of any evidences. Admittedly, a particular act is required to be done in a particular manner as provided under the statute but an inadvertent mistake to follow the procedural aspect cannot be adopted for arriving at the conclusions against the assessee. It has to be kept in mind that it is the Revenue which is alleging clandestine removal and as such, the onus to prove the same lies heavily upon them. Admittedly, Revenue has not been able to produce any evidences to that effect - the inadvertent mistake of non-mentioning of ARE-1 Nos. 19 & 20 in the shipping bills cannot lead to any adverse conclusion against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bills. He further submits that ARE-1 certificates were produced before the Customs Authorities for their examination before Superintendent Customs for putting his signature on ARE-1 form. As it is inadvertent mistake by not mentioning ARE-1 form in the shipping bills, therefore, in the absence of any tangible proof, the charge of clandestine removal is not sustainable. Therefore, he prayed that the impugned order is to be set aside. 4. On the other hand, learned AR appearing on behalf of the Revenue reiterated the findings of the impugned order. 5. Heard the parties and considered the submissions. 6. On careful consideration made by both sides, we find that the sole case of the Revenue is that in the shipping bills, the parental unit did not mention ARE-1 No.19 and 20, therefore, it has been alleged that the goods were cleared by the appellant without payment of duty. The appellants have produced the reconciliation statement of the invoices issued by the appellant and the invoices issued by the parental unit for export mentioned in shipping bills. If the quantity of all the invoices (issued by the appellant and issued by the parental unit) is taken for consideration then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of ARE-1 which did not bear the required certification (Pass for Shipment order) of the Custom Authorities at place of export i.e. CFS, Jalandhar. On the back side of these photocopies, it was mentioned that the goods have been actually exported by M/s Broadway Overseas Ltd (Unit No. 1) and not by M/s Broadways Overseas Ltd. (Unit No. 2). The shipping bills did not bear any mention of ARE-1's No. BOL-2/19/05-06 dt. 05.10.2005 and BOL-2/20/05-06 dt. 06.10.05. Thus, the appellants failed to submit the required certification of exports by Custom Authorities at the place of export. 3. The appellant have argued that there was no response to their letter dt. 07.06.2006. It is evident from the record that subsequent to that letter, there was a meeting, which the appellant had with the Assistant Commissioner of Custom, CFS, Jalandhar. This is mentioned in the letter dt. 26.06.2006 from the appellants Unit-1 to the ACF, Jalandhar and letter of the ACF, Jalandhar in which he has given his non-acceptance/proof of export is dt. 30.08.2006. This was done after taking into account the letter dt. 07.06.2006 from the appellants and the letter dt. 26.06.2006 from the appellants to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the stamp of appraiser on the first page indicated that ARE-1's were presented before the Custom Authorities. Significantly however, on the relevant places on the reverse side, where let export order is given by the Custom Authorities, none of the two officers have signed and certified that the goods have been exported. In the absence of let export order by the proper officers of customs, the claim of the appellants that goods were exported remains completely un-substantiated. 7. On examination of the export documents related to these two ARE-1's, the Commissioner has rightly concluded that noticee have neither filed ARE-1 Bol-2/19/05-06 dt. 05.10.2005 and Bol-2/20/05-06 dt. 06.10.2005 at the time of filing of said Shipping Bills nor they produced at the time of actual shipment for the required endorsement before the Assistant Commissioner, CFS, Jalandhar. In the absence of due certification of export (Pass for shipment order) by Customs authorities at the Place of export i.e. CFS, Jalandhar, which in fact is a Proof of Export as laid down under Para 13.2 of Chapter 7 of Export without payment of Duty of CBEC, Manual of Supplementary Instruction 2005, the inescapable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. 13. The Hon ble High Court of Allahabad in the case of Vee Excel Drugs Pharmaceuticals Pvt. Ltd. Vs. Union of India 2014 (305) E.L.T. 100 (All.), while examining a case where duly certified copies of ARE-1 were not filed, held as under:- 20. The purpose of aforesaid procedure has been highlighted by respondent No. 1 in the impugned order dated 18.06.2013 by observing in Paras 9.4 and 9.5 that the ARE-I application is the basic essential document for export of duty paid goods under rebate claim. The custom certification of ARE-I proves export of goods but in absence of duly certified copies of ARE-I, rebate sanctioning authority would have no chance to compare these documents with triplicate copy of ARE-I, as stipulated in Notification dated 06.09.2004 and has no material to satisfy itself about correctness of rebate claim in respect of goods allegedly exported. It is said that in case of export of goods, regarding payment of duty under bond, in terms of Rule 19 of Rules, 2002, there is a provision under Chapter 7, Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal inasmuch as, one has to proceed only in the manner prescribed under law. The principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which we do not propose to refer all but would like to refer a few recent one. The principles laid down in Para 23 and 24 of the above judgment are directly applicable to the present case. 14. The appellant's contention that Revenue should explain from where goods procured and exported by parental unit came is erroneous. The burden is on the appellants to show that they exported the goods under those ARE-1s, which they have failed to discharge. Since substantive benefit is involved, the law in fact requires that in the event of failure to export, the exporter should pay duty on his own. But the same has not been done. 15. Since no exception has been provided to the requirement of certification of let export, the same is mandatory. As the proof of export has not been produced, and since the goods were cleared from the factory, but were not exported, the Commissioner's conclusion that goods have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported. 3.1 On the other hand, Learned Member (Technical) has accepted the findings of the adjudicating authority by observing that though the ARE-1's were presented before the Customs authorities but the reverse side of the same does not show the signature of the proper officers allowing 'let export order' and in the absence of 'let export order' by the proper officers, the appellant's claim that the goods were exported remain unsubstantiated. 4. After carefully appreciating the submissions made by learned advocate Shri Sudhir Malhotra for the appellants and Shri Vijay Gupta, AR for the Revenue and after going through the impugned order, I find that the Revenue's allegations are that the goods in question stand clandestinely removed to the domestic market in which case the benefit of non-duty paid clearance for export cannot be extended. For making such allegations, the Revenue has not produced any evidence as to show and establish that the goods were diverted and as to how compensation for the same was received by the assessee. It is a matter of settled law that clandestine activities of any manufacturer, alleged by the Revenue, are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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