TMI Blog2020 (1) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... edings initiated by various show cause notices in respect of the clearances made for export from the factories located in Maharashtra before common adjudicating authority - After considering the documents furnished by the appellant, adjudicating authority has demanded the duty in the cases where he was not satisfied with proof of export - We are also not in agreement with the submissions made by the appellant that they are not able to co-relate the documents in view of the certain erroneous method adopted by the Customs Authority while endorsing the documents. It is now settled position in law that any person claiming the benefit of an exemption notification is required to fulfill the conditions specified in the notification - It is also a settled position that when law requires something to be done in particular manner then that has to be one in that manner only and all other method of doing are barred. The view taken by the adjudicating authority in the impugned order in respect of Annexure B and C cannot be faulted with. However the view of the adjudicating authority in respect of ARE-1s in Annexure A is contrary to the decision of Hon ble Bombay High Court in para 16 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for export and quantum of duty involved on such removals is also as indicated. Appellant was not able to produce the proof of export within the period as prescribed in respect of the goods cleared by them for export without payment of duty as per Notification No 42/2001 CE (NT), 26.06.2001. The proceeding were initiated against them for recovery of the duty not paid by them at the time of clearance of sugar in term of the bond executed by them. S N Date/ Value of Bond Name of Unit M/s Quantity Quintals Duty forgone Rs 1 11.06.2001/ 1,30,00,000 Shree Sankar SSK Ltd, Sadashiv Nagar 64,929 55,18,965 2 11.06.2001/ 2,30,00,000 S M S M P SSK Ltd 2,69,956 2,29,46,260 3 31.08.2001/ 72,25,000 Gadhinglaj Taluka SSK Ltd., Harali 48,628 41,33,380 4 11.06.2001/ 1,70,00,000 Krishna SSK Ltd Rathre 22, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject matter of the earlier appeal) set aside the order with the direction to obtain decision of the Board and thereafter to proceed in the matter. 3. The Board thereafter by its Order No. 17/2006-Central Excise dated 16th June, 2006 directed consolidation of four show cause notices as set out in the order. Grievance of the petitioners is that the Board has not consolidated all the show cause notices which were required to be consolidated so that an effective order could be passed. We now find that in respect of the show cause notice issued to M/s. Sant Tukaram S.S.K. Ltd., Kasarsai it is kept in the D.C. Pune Division and in case of M/s. Daulat S.S.K. Ltd., the documents are kept pending with A.C. (Bond) Mumbai - for finalization of proof of export order of consolidation is yet to be passed. In case any other show cause notices are pending relatable to the issue we direct the petitioners herein to apply to the Board for consolidation of these show cause notices also with the show cause notice already consolidated by the order dated 16th June, 2006. We are informed that there are two other show cause notices. The decision to be taken as early as possible on the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken into record and reconcile. Accordingly Commissioner has considered the documents pertaining to all the 13 units. He records in para 3 of the order as follows: I have considered the documents pertaining to the clearances of sugar from all the 13 units mentioned by M/s SRH while passing the order. 2.6 Commissioner ahs in para 5 of the impugned order recorded as follows: 5 The above five show cause notices are issued because of irreconcible deficiencies and discrepancies between the various documents namely AR-4/ARE-1, Shipping Bill, Bill of Lading, Invoices, Bank Realization Certificate etc. which have been produced by the noticee for acceptance of proof of export. Broadly, these discrepancies can be categorized as under: (i) Original and duplicate AR-4/ ARE-I with the Customs endorsement not produced. (ii) The country of destination shown in the AR4/ARE-I and shipping bills are not tallying. (iii) The sugar was removed from the factory in 100 Kgs. Bags but the shipping documents shown the shipment in 50 Kgs bags. (iv) Date of shipment/ let export in the shipping document is prior to date of ARE-I which is physically impossible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under these ARE-1s and exported under 198 Shipping Bills, only the 272 MT cannot be reconciled (approx 220 Grams per Quintal) which is due to handling wastage during re-packing of the same. Band Realization Certificate (BRC) has also been produced in respect of 196 SBs and only in respect of two SBs accounting for 350 MT the BRC are not available and not produced. Demand has been confirmed under Annexure A of impugned OIO on the basis of non production of Original copy of Original and Duplicate ARE-1s, photocopies of same duly by Customs have been produced. Hon ble Mumbai High Court has in the matter of M/s U M Cables [2013 (293) ELT 641 (Bom)] held that demand could not have confirmed merely for the reason that original of original and duplicate copy of ARE-1s have not been produced. Demand has been confirmed under Annexure B of impugned OIO on the basis that the ARE-1s were endorsed with the SBs which were prior to the date of clearance of sugar from the factory, which is not possible and in some cases Excise Commissionerate of goods cleared were shown as Hyderabad under the relevant SBs. Though it s a fact that goods could not have been exported prior to the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Fibres Pvt Ltd [2014 (311) ELT 529 (T-Ahmd)] Model Buckets attachments (P) Ltd [2007 (217) ELT 284 (T-Bang)] affirmed at {2014 (300) ELT 510 (Kar)] They are in possession of SBs and BRC evidencing the exports. Adjudicating authority has himself recorded that the goods were repacked at the port, thus admits that the goods had reached the port. Hon ble Apex Court has in case of Suksha International Nutan Gems Anr [1989 (39) ELT 503 (SC)] and A V Narasimhalu [1983 (13) ELT 1534 (SC)] stated the administrative authorities should instead of relying on technicalities, act in a manner with broader concept of justice. In interest of justice the matter should be remanded back to adjudicating authority for reconsideration. 3.3 Arguing for the revenue learned Authorized Representative while reiterating the findings recorded in the impugned order submitted that:- From 2002 onwards it has been the strategy of the appellant s to moot for tallying the total quantity of white sugar procured from 13 mills in Maharashtra against the total quantity of white sugar procured from 13 Mills in Maharashtra against the total quantity of sugar exported as per rte shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich tallies with the total quantity of sugar cleared from the 13 different sugar mills located in Maharashtra. 4.1 We have considered the impugned order along with the submissions made in appeal, during the course of arguments and in written submissions filed. 4.2 The three annexures as per which the demand has been confirmed against the appellant by the adjudicating authority are reproduced below: Annexure A (to the OIO No 2/CEX/2010 in r/o of M/s Shivnath Rai Harnarain, New Delhi) List of AR-4/ ARE-1 whose original and Duplicate copies endorsed by Customs officer not produced in respect of- S No AR-4/ ARE-1 No/ Date Quantity Removed ' Qtls Duty Demanded 'Rs (a) M/s S M S M P SSK Ltd 1 14/15.07.2001 9970 8,47,450 2 15/16.07.2001 7481 6,35,885 3 20/23.07.2001 8140 6,91,900 4 24/28.07.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2001 indicated that the sugar was originally procured from the jurisdiction of Division VI Hyderabad - I Commissionerate 2 3/18.06.2001 291 2,47,350 The shipping bill No 5148727 dated 18.06.2001 indicated that the sugar was originally procured from the jurisdiction of Hyderabad Commissionerate. 3 7/23.06.2001 849 7,21,650 The shipping bill No 5148726 dated 18.06.2001 indicated that the sugar was originally procured from the jurisdiction of Division 1 Hyderabad Commissionerate . Further the actual removal of the sugar from the registered factory was on 23.06.2001 whereas the relevant shipping bill No 5145341 dated 04.06.2001 indicated that the shipment of the consignment on 11.06.2001. The Mate Receipt No 46 dated 21.06.2001 indicated the date of receipt of the consignment on Board the vessel on 21.06.2001. 4 8/25.06.2001 651 5,53,350 The actual removal of the sugar from the registered factory was on 25.06.2001 whereas the relevant sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from the registered factory was on 13.08.2001 whereas the relevant shipping indicated that the shipment of the consignment had taken place on 06.08.2001. 10 39/16.08.2001 40 34,000 The actual removal of the sugar from the registered factory was on 16.08.2001 whereas the relevant shipping bill No 5159832 dated 03.08.2001 indicated that the shipment of the consignment on 03.08.2001. 11 40/21.08.2001 1183 10,05,550 The actual removal of the sugar from the registered factory was on 21.08.2001 whereas the relevant shipping bill No 5158070 dated 27.07.2001 and 5159832 dated 03.08.2001 indicated that the shipment of the consignment on 28.07.2001 and 06.08.2001 respectively 12 41/22.08.2001 782. 8 6,65,380 The actual removal of the sugar from the registered factory was on 22.08.2001 whereas the relevant shipping bill No 5162477 dated 18.08.2001 and 5162468 dated 18.08.2001 indicated that the shipment of the consignment on 18.08.2001 and 21.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19,26,440 Annexure B - Grand Total (a) + (b) + (c) = 1,00,43,430/- Annexure B (to the OIO No 2/CEX/2010 in r/o of M/s Shivnath Rai Harnarain, New Delhi) Showing mis match between Shipping documents and AR-4/ ARE-1 Sri Sant Tukaram SSK Ltd Part-II (List of Shipping Bills AR-4 wise) Sr No S Bill No/ Date as per AR-4 Quantity of Sugar as S/Bill MT AR-4 No/ Date Quantity indicated in AR-4 MT BRC Date Remark if any 1 5148727/ 18.06.2001 850 1/ 2.5.01 250 9.8.01 Hyderabad 2 546813/ 11.06.2001 1884.8 4/ 9.5.01 203 17.7.01 Hyderabad 1 8/ 10.5.01 304 10/ 12.5.01 293 33/ 25.5.01 249 3 2120/ 13.6.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .9.2001 -- 16 5146814/ 11.6.2001 860 18/ 16.5.01 262 25.6.2001 Pune-II 19/ 16.5.01 596 17 5151329/ 28.6.2001 500 20/ 17.5.01 312 30.8.01 Hyderabad 24/ 19.5.01 201.5 18 5158702/ 1000 21/ 17.5.01 656 1.8.01 A Nagar/ A Bad 22/ 18.5.01 284 19 5154610/ 13.7.2001 900 23/ 18.5.01 49.7 30.8.01 -- 31/ 23.5.01 234 35/ 26.5.01 247 20 51406662/ 16.5.2001 1000 25/ 20.5.01 237 25.6.01 -- 26/ 20.5.01 384 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Excise and Customs hereby notifies the conditions and procedures for export of all excisable goods, except to Nepal and Bhutan without payment of duty from the factory of the production or the manufacture or warehouse or any other premises as may be approved by the Commissioner of Central Excise, namely: - 1. Conditions: - 1. that the exporter shall furnish a general bond in the Form specified in Annexure-I to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory, warehouse or such approved premises, as the case may be, or the Maritime Commissioner or such other officer as authorised by the Board on this behalf in a sum equal at least to the duty chargeable on the goods, with such surety or sufficient security, as such officers may approve for the due arrival thereof at the place of export and their export therefrom under Customs or as the case may be postal supervision. The manufacturer-exporter may furnish a letter of undertaking in the Form specified in Annexure-II in lieu of a bond. 2. that goods shall be exported within six months from the date on which these were cleared for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Sealing of goods and examination at place of despatch. (a) ..; (b) ..; (c) ; (d) ..; (e) ... (iii) Dispatch of goods by self-sealing and self-certification. (a) ..; (b) ..; (c) ..; (d) . (iv) Examination of goods at the place of export. (e) On arrival at the place of export, the goods shall be presented together with original, duplicate and quintuplicate (optional) copies of the application to the Commissioner of Customs or other duly appointed officer; (f) The Commissioner of Customs or other duly appointed officer shall examine the goods with the particulars as specified in the application and if he finds that the same are correct and exportable in accordance with the laws for the time being in force, shall allow export thereof and certify on the copies of the application that the goods have been duly exported citing the shipping bill number and date and other particulars of export: Provided that if the Superintendent or Inspector of Central Excise sealed packages or container at the place of despatch, the officer of customs shall inspect the packages or contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings initiated by various show cause notices in respect of the clearances made for export from the factories located in Maharashtra before common adjudicating authority. (Refer para 2.3 and 2.4, supra). 4.7 After considering the documents furnished by the appellant, adjudicating authority has demanded the duty in the cases where he was not satisfied with proof of export for the reasons as stated in the three Annexures to the impugned order reproduced in para 4.2 supra. 4.8 It is now settled position in law that any person claiming the benefit of an exemption notification is required to fulfill the conditions specified in the notification. Hon ble Supreme Court has in case of Dilip Kumar Co [2018 (361) ELT 577 (SC)] held as follows: 25. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between strict interpretation and literal interpretation . We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments in view of the certain erroneous method adopted by the Customs Authority while endorsing the documents. In case of Mihir Textiles [1997 (92) ELT 9 (SC)] Hon ble Supreme Court while rejecting such arguments stated the law as follows: 11. Learned counsel for the appellant raised an alternative contention that the deficiency in the contract for obtaining the concessions should not have been taken so seriously and the Customs Authorities should have granted the reliefs as the appellants had performed their part in complying with the conditions. Non-compliance of the conditions, according to the counsel, was only due to the lapses on the part of the authorities concerned. This contention was expatiated to the extent that the conditions prescribed in the proviso to entry No. 84.66 are merely directory and not mandatory. According to the counsel, the conditions prescribed, if interpreted strictly, would result in the denial of concessional reliefs which statute has conferred on the citizen. 12. In support of that contention, counsel invited our attention to the decision of a Constitution Bench of this Court in State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end product, they could not ordinarily have complied with the requirements of Rule 56A. Nor can we find support from the ratio in B.O.I. Finance Ltd. v. The Custodian Others, JT 1997 (4) 15, that infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering into buy-back arrangements do not invalidate such contracts entered into between the banks and it s customers , as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional duty. 4.10 Hon ble Bombay High Court has in case of U M Cables [2013 (293) ELT 641 (Bom)] held as follows: 15. In the situation in the two writ petitions, the rebate claims that were filed by the Petitioner would have to be duly bifurcated. As noted earlier the first writ petition [Writ Petition 3102 of 2013] relates to two claims dated 20 March, 2009 and 8 April, 2009 in the total value of ₹ 12.54 lacs. In respect of the second of those claims dated 8 April, 2009, of a value of ₹ 10.08 lacs, the Petitioner has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 passed by the revisional authority in the case of the Petitioner itself by which the non-production of the ARE-1 form was not regarded as invalidating the rebate claim and the proceedings were remitted back to the adjudicating authority to decide the case afresh after allowing to the Petitioner an opportunity to produce documents to prove the export of duty paid goods in accordance with the provisions of Rule 18 read with notification dated 6 September, 2004 [Order No. 1754/2010-CX, dated 20 December, 2010 of D.P. Singh, Joint Secretary, Government of India under Section 35EE of the Central Excise Act, 1944]. Counsel appearing on behalf of the Petitioner has also placed on the record other orders passed by the revisional authority of the Government of India taking a similar view [Garg Tex-O-Fab Pvt. Ltd. - 2011 (271) E.L.T. 449] and Hebenkraft - 2001 (136) E.L.T. 979. The CESTAT has also taken the same view in its decisions in Shreeji Colour Chem Industries v. Commissioner of Central Excise - 2009 (233) E.L.T. 367, Model Buckets Attachments (P) Ltd. v. Commissioner of Central Excise - 2007 (217) E.L.T. 264 and Commissioner of Central Excise v. TISCO - 2003 (156) E.L.T. 777. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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