2009 (10) TMI 372 - AT - Central Excise

Tribunal rules in favor of appellants on duty payment obligation dispute, clarifying consignor responsibilities.

SKYRON OVERSEAS Versus COMMISSIONER OF C. EX., SURAT

The Tribunal ruled in favor of the appellants, emphasizing that the duty payment obligation cannot be imposed solely due to the range officer's failure to ... 100% EOU- They cleared two consignments, first one on 19-4-2004 and second on 4-5-2004 to another 100% EOU against CT3 certificate issued by the receiving EOU.A show cause notice was issued to the appellants informing them that since they failed to produce original re-warehousing certificate within 90 days, they have to pay duty on the goods cleared by them without payment of duty. Held that- In the absence of any evidence from the records to show that the consignor diverted and sold the goods in local market to some other person and thereby violated the provisions relating to ware housing warehouse, responsibility for payment of duty cannot be fastened on him merely because range officer failed to do his duties enjoined upon him by the Circular of the Board. In view of the above discussions, I find that the appellant cannot be found fault with for non receipt of original copy of re warehousing certificate duly countersigned by the range officer and it is the responsibility of Superintendent incharge of the consignor unit. Accordingly, I allow the appeal with consequential relief to the appellants. Issues:1. Duty payment on goods cleared without re-warehousing certificate2. Responsibility for payment of duty on goods cleared to another EOU3. Interpretation of Rule 20 of Central Excise Rules, 2002 regarding warehousing provisions4. Consignor's obligation upon receiving duplicate copy of AR3AAnalysis:Issue 1: Duty payment on goods cleared without re-warehousing certificateThe appellants were charged duty of Rs. 5,84,869/- with interest for clearing goods without producing the original re-warehousing certificate within 90 days. The Tribunal emphasized that the consignor's responsibility ends upon receiving the duplicate copy of the AR3A and informing the range officer. In the absence of evidence proving diversion or violation of warehousing provisions by the consignor, the duty payment obligation cannot be imposed solely due to the range officer's failure to fulfill duties outlined by the Board's Circular. The appeal was allowed, providing relief to the appellants.Issue 2: Responsibility for payment of duty on goods cleared to another EOUThe advocate for the appellants argued that as per Rule 20 sub Rule (4) of Central Excise Rules, the responsibility for payment of duty lies with the consignor if the goods dispatched are not received at the destination warehouse. The Tribunal referenced a previous decision where it was held that the responsibility to obtain the re-warehousing certificate duly countersigned by the Central Excise Officer rests with the department, as per the Board's Circular. The Tribunal concluded that the consignor cannot be held accountable for non-receipt of the original re-warehousing certificate, placing the responsibility on the Superintendent in charge of the consignor unit.Issue 3: Interpretation of Rule 20 of Central Excise Rules, 2002 regarding warehousing provisionsThe Tribunal examined Rule 20 of the Central Excise Rules, particularly sub Rule (4), which specifies the consignor's responsibility for payment of duty if the goods are not received at the destination warehouse. The Tribunal highlighted the procedural requirements for submitting the AR3A form and the obligations of the consignor and consignee in the warehousing process. It was emphasized that once the consignor receives the duplicate copy of AR3A, his statutory obligation ends unless there is evidence of diversion or violation.Issue 4: Consignor's obligation upon receiving duplicate copy of AR3AThe Tribunal clarified that upon receiving the duplicate copy of the AR3A, the consignor's responsibility is fulfilled, unless there is evidence of diversion or misconduct. The Tribunal emphasized that the consignor cannot be held liable for non-receipt of the original re-warehousing certificate, placing the onus on the Superintendent in charge of the consignor unit to ensure compliance with the warehousing provisions.In conclusion, the Tribunal ruled in favor of the appellants, highlighting the consignor's obligations, the interpretation of Rule 20 of the Central Excise Rules, and the responsibility for payment of duty on goods cleared without the re-warehousing certificate.