2016 (12) TMI 331

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....etion of the export the appellants had submitted the ARE1s duly certified to the department for admittance of proof of export. On verification of proof of export the department noticed shortage in the quantity of cement clinker exported. Show cause notices were issued covering the period from 2003-04 to 2005-06 for exports made from Kakinada port as well as Vizag port. The appellants defended the SCNs contending that the shortage occurred due to natural/normal/unavoidable handling/transit loss and therefore the losses could not be accounted for. After due process of law the adjudicating authority confirmed the demand of duty amounting to Rs. 23,54,105/- along with interest and also imposed equal amount of penalty. Being aggrieved the appell....

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....act of diversion of goods or removal of goods in any manner. The only probability is that the goods (shortage) was lost in transit. 3. On behalf of the department the Ld. AR Sh. S.C. Bose reiterated the findings in the impugned order. He submitted that the appellants ought to have produced proof of export of the quantity that has been declared in the ARE1 documents and on failure to do so they are liable to pay the duty for the short quantity. He referred to Rule 19 of Central Excise Rules, 2002 and submitted that in case of export goods without payment of duty under LUT, the appellants are liable to fulfil the conditions of Notification No. 42/2001-CE-NT dated 26.06.2001 read with instructions in chapter 7 of the CBEC manual. The condit....

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.... relied upon by the Ld. Counsel by the appellant, the Tribunal and the various courts have condoned the shortage of cement clinker occurred due to natural causes. In the case of UP State Cement Corporation Ltd., (Supra) [2002 (145) ELT 513 (All)] the Hon'ble Court had occasion to consider the same issue. The Hon'ble Court had given remission of duty to the appellant for the short quantity due to transit loss. The said judgment was challenged by the department before the Hon'ble Apex Court and the SLP filed by department was dismissed on the ground of delay and also on merits. (Union of India Vs UP State Cement Corporation Ltd., - [2016 (331) ELT (A188) SC]). In the said case the Hon'ble High Court observed as under: 3. The petitioner bei....