TMI Blog2019 (1) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation that the goods were not consigned by the Appellant. The non attending of summon by the owner as he was on Haj and the same was communicated by his son cannot lead to inference that the appellant deliberately did not appear to attend the summon - Therefore in the given set of facts and in absence of any adverse evidence, it cannot be said that the goods did not reach the consignee or were not warehoused. Demand set aside - appeal allowed - decided in favor of appellant. - Appeal No. C/311/2009-DB, E/1342/2009-DB - A/10069-10070/2019 - Dated:- 10-1-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Shri Hardik Modh (Advocate) For Respondent: L. Patra (AR) ORDER Per: Ramesh Nair The present appeals No. E/1342/2009 and C/311/2009 has been filed against Order-in-appeal No. RKA/110/SRT-I/2009 dated 17.03.2009 passed by the Commissioner (Appeals), Surat wherein he has upheld the Order-in-Original No. 19/Addl-PSK/OA/2007 dated 07.11.2007 passed by the Addl. Commissioner, Central Excise, Surat I. The appeal No. E/1342/2009 is against duty demand and penalty imposed upon Appellant whereas the Customs app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of re-warehousing certificate in name of M/s Khan Garments in the month of May 02. The Appellant were issued show cause notice No. V (Ch -54) 15- 01/D/Addl./07 dated 22.01.2007 proposing to demand duty foregone on the clearance of finished goods and also on the duty free raw materials consumed in the said show cause notice on the ground that the Appellant has failed to submit the genuine reware housing certificates within the stipulated time period and intentionally procured forged documents with deliberate intention to evade duty and by not getting re-warehousing certificates from the Range Superintendent of the consignee. Accordingly the show cause notice proposed demand of duty equal to custom duty amounting to ₹ 10,78,405/- on finished goods. It also proposed to impose penalty under Rule 25 read with section 11AC. In addition, the central excise duty of ₹ 14,96,320/- on raw materials procured by the Appellant and which were consumed in finished goods were also made along with proposal to impose equivalent amount of penalty under Rule 25 read with section 11AC. The show cause notice also proposed confiscation of the finished goods cleared and raw materials/ inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the Appellant in parallel proceedings in respect of six other consignments gives reasonable doubt that the Appellant did resort to fake re-warehousing certificates; in case of evasion booked against the consignee the duty and penalty exceeding more than ₹ 100 crores have been imposed. He therefore rejected the appeals. Being aggrieved the Appellant has filed the present appeals. 5. Ld. Counsel Shri Hardik Modh appearing for the appellant submits that the finding of the lower authorities is not correct. He submits that the allegations against the Appellant are merely based upon assumption and presumptions. That the Appellate Commissioner has grossly erred in proceedings initiated against the Appellant in other consignments which are altogether different proceedings. Existence of case against the consignee cannot be basis for alleging diversion of goods by Appellant. The Appellant being consignor of goods cannot be held liable for duty. Mere non indication of name of the Superintendent warehousing the goods does not per se entitles the department to discard otherwise valid re-warehousing certificates. The communication of re-warehousing certificate from the Range offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (TRI), Arya Fibers Pvt. Ltd. 2009 (240) ELT 718 (TRI). He also submits that the demands are time barred. 6. Shri L. Patra Ld. Assistant Commissioner (AR) appearing for the revenue supports the findings of the lower authorities. He also relies upon the tribunal order in case of Sunstar Impex (P) Ltd. 2009 (240) ELT 605 (TRI) to state that in case it is liability of the consignor to see that the goods reached the consignee. 7. Heard both the sides and perused the records. We find that the appellant has produced the re-warehousing certificate from the consignee. The jurisdictional range authorities of consignee has reported that the records are not traceable as well as the diaries of the Superintendent and Inspector administering the consignee are also not traceable. That the records has been taken by the investigation wing of the department. The verification report given by the jurisdiction authority of the consignee is thus inconclusive and on that basis it cannot be assumed that the goods did not reach consignee. Further the authorities at consignee s end also informed that the Range Superintendent has countersigned 415 Nos of AR-3s pertaining to consignee M/s Asharani which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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