TaxTMI 
TaxTMI 
TaxTMI 
2013 (6) TMI 685
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....l Excise Rules, 2002 and Notification No. 42/2001-C.E. (N.T.) as amended issued under Rule 19 of the Central Excise Rules, 2002 as per the facts mentioned below : 2.1 The applicant had furnished a letter of undertaking (LUT) for acceptance to the competent authority i.e. the Jurisdictional Assistant Commissioner, Central Excise Division, Alwar vide his letter dated 1-8-2006. The said LUT had not been accepted by the Assistant Commissioner, Central Excise Division, Alwar and returned in original to the Central Exicise Range, Bharatpur vide his office letter C. No. V(5)23/LUT/2006/2035, dated 14-8-2006. The Superintendent, Central Excise Range, Bharatpur vide his office letter C. No. CE-20/2/Misc/2003/17, dated 21-8-2006 sent through registered post returned the said LUT in original to the applicant intimating the objections and shortcomings in the said LUT. 2.2 The applicant vide his letter dated 31-3-2007 submitted photocopies of ARE-1 No. 1 to 12 to the Sector Officer, Central Excise Sector, Dholpur. While scrutiny of the same it was noticed that the applicant had cleared goods for export without payment of duty by mentioning therein the reference of LUT-1 dated ....
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....7 were issued to Shri J.L. Arora, Director of the applicant by the Superintendent, Central Excise Range, Bharatpur but he did not appear to tender his statements. Summon dated 14-5-2007 was also issued to Shri R.C. Sharma, Authorised Signatory of the applicant by the Superintendent, Central Excise Range, Bharatpur. Shri R.C. Sharma, Authorized Signatory appeared before the Superintendent, Central Excise Range, Bharatpur in compliance to the summon dated 14-5-2007 but did not tender his statement due to self-illness and assured that he would be appeared later on after confirming on telephone but he did not appear thereafter on any occasion even after issuance of Summons to him on 28-5-2007, 20-6-2007, 12-7-2007. 2.5 The applicant vide his letter dated 15-7-2007 submitted that they had already sent reply vide their letter dated 10-5-2007. They further informed that they had already submitted the original ARE-1 No. 1 to 21 duly signed by the Supdt. (Customs), ICD along with copy of Shipping Bills and Bills of Lading duly certified by the Exporter as a proof of export and there was no fault on their part regarding export clearance. 2.6 The discrepancies sought while scrutin....
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....thout payment of duty in the monthly ER-1 Returns are given in para 12 of the impugned order. Details of the quantity and value of goods shown to be cleared for export without payment of duty in the ARE-1s are given in para 13 of the impugned order. From these figures, it is clear that value of goods exported shown in ARE-1s is Rs. 1,26,54,800/- whereas the value of goods exported shown in ER-1s is Rs. 1,22,37,950/- and accordingly there is a value difference of Rs. 4,16,850/- in the figures shown in ARE-1 viz-a-viz ER-1 returns. 2.12 It has also been noticed that quantity and No. of packages shown in ARE-1s are not tallied with respective Shipping Bills and Bills of Lading in respect of some ARE-1s. It also appears that some ARE-1s are mutilated. ARE-1 No. 04, dated 7-10-2006 showed 50 packages (1250 pairs) of CIM/H covers whereas respective S/Bill No. 03531 dated NIL and Bill of Lading showed 48 Bundles (1200 Pcs.) of CIM/H covers. Moreover, the ARE-1 has not been signed and certified by the Customs authority. Similarly, ARE-1 No. 01, dated 4-8-2006 showed 220 Packages (1100 Sets) whereas the respective S/B as well as Bill of Lading showed the quantity 250 Bundles (1250 Set....
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.... of the Central Excise Act, 1944 along with interest under Section 11AB of the Act ibid. 2.15 It also appeared that the applicant had suppressed the material facts from the department by not submitting the correct information in respect of goods cleared for export in the monthly ER-1 Returns and by not submitting export documents to the Department in the prescribed manner and contravened the provision of Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19 of Central Excise Rules, 2002 with an intent to evade payment of duty and therefore extended period under the proviso to Section 11A(1) of the Central Excise Act, 1944 is invokable in this case. 2.16 Therefore a show cause notice C. No. V(72) 15/Off/210/2007/ 2980, dated 29-11-2007 was issued to them to show cause and explain as to why :- (i) The Central Excise Duty amounting to Rs. 20,69,741/- should not be recovered them under proviso to Section 11A(1) of the Central Excise Act, 1944 along with interest under Section 11AB of the Central Excise Act, 1944. (ii) Penalty should not be imposed upon them under Section 11AC of the Central E....
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....finding of the adjudicating authority is illegal. 4.3 The adjudicating authority as well as the Commissioner (Appeals) had not given any finding in respect of the grounds taken by the applicants as to who was responsible for non-communication with the applicants up to a long period of 8 months from the date of submission of LUT and not raising any objection by the department. The adjudicating authority as well as the Commissioner (Appeals) had failed to give any finding on serious negligence occurred on the part of the departmental authorities which caused undesirable and expensive litigation to the appellants. 4.4 The applicants have submitted all the corroborative evidence to establish that the goods cleared from their factory have eventually been exported. Even after furnishing of proof of export pertaining to the entire quantity and reporting thereof in the monthly returns, the adjudicating authority as well as the Commissioner (Appeals) had confirmed the demand of duty and penalty ignoring all the citations relied upon by the applicants. In this regard reliance is placed on the following decisions : * Benara Bearings Pvt. Ltd. v....
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.... order dated 4-8-2011 in W.P. No. 5529/11 in the case of M/s. High Polymers Ltd. and Hon'ble High Court of Bombay in the case of M/s. EPCOS India Pvt. Ltd. in W.P. No. 10102/11 vide order dated 25-4-2012 - 2013 (290) E.L.T. 364 (Bom.) have held that period consumed for perusing appeal bona fidely before wrong forum is to be excluded in terms of Section 14 of Limitation Act, 1963 for the purpose of reckoning time limit of filing revision application under Section 35EE of Central Excise Act, 1944. Government keeping in view the above judgments, the delay which has occurred due to valid reasons and same is within condonable limit, condones the said delay and takes up revision application for decision on merit. 8. Government observes that the applicant furnished letter of undertaking (LUT) in the form of UT-1 for export of the goods without payment of duty under Rule 19 of Central Excise Rules, 2002 and exported the goods through merchant-exporter. The original authority confirmed demand of duty with applicable interest on the ground that the applicant having exported the goods under Rule 19, ought to have executed Bond in place of LUT; that the LUT was not accepted by the ....
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....t would be the same as in the case of manufacturer-exporters." 9.1 From provision contained in Condition No. (i) of the Notification No. 42/2001-C.E. (N.T.), it is clear that option of furnishing letter of undertaking (LUT) was available to manufacturer-exporter only. In this case the applicant is manufacturer of the goods but not the exporter. The goods were exported by the merchant-exporter. Under such circumstances, provision contained in Para 5.4 of Part-II of Chapter 7 of the C.B.E. & C. Manual of Supplementary Instructions, 2005 is attracted. The provision of said Para 5.4 unambiguously states that in case of merchant-exporter, the Bond has to be necessarily furnished. However, it is open for the manufacturer to furnish Bond on behalf of the merchant-exporter. In this case, since the goods were exported by the merchant-exporter there is no relaxation from executing Bond and export the goods under LUT. Applicant cleared goods for export without payment of duty but did not execute the bond in prescribed format. He had submitted LUT before sector officer whereas the LUT or bond is to be filed and executed before Assistant Commissioner/Deputy Commissioner of Central Excise.....