TMI Blog2023 (8) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that they had followed the procedure as laid down in law for clearances of goods to M/s Neeraj Exim and department has not disputed on the genuineness of CT-3 certificate issued by the department and re-warehousing certificate issued by the Jurisdictional officer of M/s Neeraj Exim - this aspect has not been considered by the Ld. Commissioner in the present matter. Since the department has made the allegation of non-re-warehousing of the goods at the consignee s end, it has to prove the same by substantial evidence and it cannot be made on assumption. It has to be shown as if the goods were not warehoused then where were the same diverted. In present case there is no evidence of diversion of goods. It is also found that on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated. 13.02.2008 was issued to the Appellant, Arvind D. Patil, Proprietor and M/s Neeraj Exim Pvt. Ltd., Kolkata alleging that Appellant had in the guise of making deemed exports to another EOU M/s Neeraj had diverted the goods and created fictitious clearance documents to M/s Neearj whereas the goods were not physically transported to the EOU at West Bengal but instead diverted to the local market in contravention of Exim Policy and had evaded payment of duty. The impugned show cause notice alleged that the dispatches to M/s Neeraj were mere paper transactions. Accordingly show cause notice proposed the demand of central excise duty of Rs. 2,55,38,210/- on clandestinely cleared dyed grey fabrics illicitly removed and excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Form CT-3 at ex-factory and received payment towards it. Since it is not in dispute about genuineness of CT-3 form, warehousing certificate and payment, the duty demand is not sustainable against the appellant. He placed reliance on the following judgments. (i) Commissioner of Central Excise Vs. Reliance Industries Ltd. 2012 (277) ELT 398 (T) (ii) Sunshine Overseas Vs. Commissioner of Customs 2011(268)ELT 374 (T) (iii) Abubakar Ismail Kapadia Vs. Commissioner of Central Excise Service tax- 2019(369)ELT 1003. (iv) Arya Fibers Vs. C.C.Ex. -2014(311)ELT 529 (T) (v) Vikram Enterprises Vs. CC -2008 (226)ELT 437 (T) (vi) Santogen Textiles Mills Ltd. Vs. Commissioner of Central Excise 2007(214) ELT 386 (T) (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were diverted into Domestic Tariff Area (DTA) in guise of clearance to the said EOU unit of West Bengal and failed to get the goods re-warehoused at the said EOU. The Ld. Commissioner by relying the report of Commercial Tax Department, West Bengal confirmed the demand. The Ld. Commissioner in the present matter also observed that the owner/ operators of 3 vehicle categorically denied transporting any goods to M/s Neeraj. The appellant has contended that as per the contract goods are cleared ex-factory delivery. The responsibility of transportation of goods from factory is upon the M/s Neeraj Exim. The contract produced by the appellant clearly shown the delivery term as Ex-factory. We also find that the appellant has contended that they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture. This aspect also not properly considered by the Ld. Commissioner. 10. We also observed that the appellant have relied upon various judgments on the identical issue which Adjudicating Authority had no occasion to consider. Needless to say that the judgments relied upon by the appellant shall apply only after verifying the facts of each case. 11. In this position, we are of the view that since the above issues have not been dealt with in a proper manner by the Learned Commissioner, the matter needs to be reconsidered as a whole. Accordingly, we set aside the impugned order and remand the matter to the Adjudicating Authority to decide the matter afresh after affording an opportunity of personal hearing to the appellant preferably ..... X X X X Extracts X X X X X X X X Extracts X X X X
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