2015 (12) TMI 1350

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....der the cover of six ARE-1s during the period from 13.2.2002 to 17.3.2003. They have produced proof of export in respect of four ARE-1s. They failed to produce proof of export in respect of ARE-1 Nos. 328 and 329 both dtd 29.1.2003 involving Central Excise duty of Rs. 7,96,027/-. The Adjudicating authority confirmed the demand of duty of Rs. 7,96,027/- under two ARE-1s alongwith interest and imposed penalty of equal amount under Rule 25(1) of the Central Excise Rule 2002. It has also imposed penalty of Rs. 7,00,000/- on Shri Umar T Chamadia, partner of the appellant firm. 2. The Learned Advocate on behalf of the appellant submits that they have not exported the goods in respect of the said two ARE-1s. On 28.4.2003, the Central Excise offic....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed on the firm, no further penalty cannot be imposed on the partner as held by the Hon'ble Gujarat High Court in the case of Pravin N Shah vs CESTAT - 2014.305. ELT.480 (Guj). 4. The Learned Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating Authority . He submits that the records were seized in 2003. He submits that the Tribunal in the remand order had not given any direction to furnish the document. He drew the attention of the Bench to the Tribunal remand order. He further submits that it is a clear case of clandestine removal of the goods as the appellant failed to furnish the proof of export against the two ARE-1s and therefore, the demand of duty and penalty would be sustained. He also subm....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he Tribunal remanded the matter two times by order dtd 23.11.2004 and 20.2.2007. There is no dispute on the facts that the appellant cleared the goods under cover of ARE-1s without payment of duty. It is not recorded in the export register. The appellant failed to provide any evidence that two ARE-1s were cancelled. The plea of seizure of the documents is without any basis. The case laws and the Board Circular would not be applicable in this case. 6. The next issue is eligibility of the benefit of exemption Notification No 125/84-CE dtd 25.5.1994. The Tribunal remanded this matter with specific observation as under:  " It is further seen that the appellants made alternative prayer that in any case, goods if allegedly cleared, would ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the Central Excise Rules, 1944, the Central Government hereby exempts all excisable goods produced, or manufactured in a hundred percent export oriented undertaking from the whole of duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944 (1 OF 1944): Provided that the exemption contained in this notification shall not apply to such goods if allowed to be sold in India." 8. The notification exempted the goods from the whole of duty, manufactured in 100% EOU. The said exemption would not be applicable if such goods is allowed to be sold in India. Proviso to Notification No 125/84-CE (supra) makes it clear that, if the goods are cleared for home consumption, exemption benefit cannot be extended. It is well settled t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... on the basis of permission of the Development Authority. The Hon'ble Supreme Court in the case of NCC Blue Water Products Ltd (supra), as relied upon by the Learned Advocate observed that excise duty on such sale in DTA is chargeable under the main Section 3(1) of the Central Excise Act 1944. Thus, it is clear, if the goods are not exported and the appellant fails to furnish proof of export, the duty will be demanded on such goods. We find that there is no need to go into chargeability of duty of the goods, as it is not the case of the appellants. Hence the demands of duty alongwith interest is justified. 9. We agree that the submission of the Learned Advocate that there is no allegation of diversion of the goods into DTA and therefore im....