TaxTMI 
TaxTMI 
2015 (10) TMI 2614
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....t Rs. 9,06,984/- involving Central Excise Duty of Rs. 1,45,117/- and Education Cess of Rs. 2,902/- for export to M/s. J.V. Gokal Pvt. Ltd., Srilanka under Central Excise supervision. But the audit found that the duplicate copy of the said ARE-1 was not certified by Customs authority showing that the material meant for export was not ultimately exported. When the issue was brought to the notice of the applicant, they could not offer any comment on the question of the said ARE-1 unsigned by Customs but submitted vide their letter dated 10-6-2008 some documents stating to be proof of export. From the submitted documents it was observed that the relevant particulars of ARE-1 were absent in all the copies namely shipping Bill No. 5266480, dated 31-10-2005, bill of lading No. CPICCU000338, Export Invoice No. EX-109/2005-06, dated 31-10-2005 and packing list. Therefore the said documents as submitted did not satisfy the fact that the said material was exported under ARE-1 No. EX/109/2005-06, dated 31-10-2005. The applicant had misdeclared the fact of exportation with the intent to evade payment of Central Excise Duty and Education Cess to the tune of Rs. 1,45,117/- and Rs. 2,902 respectiv....
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....ods in their own seal as per self-sealing procedure under Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001. 4.2 That being advised by the Customs authorities the applicant prepared ARE-1 with the same number and date and same details and the same was produced before the Customs authorities as self-sealing in order to export the goods expeditiously, otherwise the export would have been cancelled. 4.3 That the Customs authorities after being satisfied allowed the export and signed the duplicate copy of the ARE-1. That the said ARE-1 was produced before the department in order to prove that the goods have been exported. 4.4 That in the present case there cannot be dispute that the goods have been exported. Only some procedural infirmity has been mentioned to deny the benefit of export. That the ARE-1 number which was initially submitted to the Customs authorities at the Dock is the same which was filed subsequently. That the details are same, except the value. That initial invoice produced before the Customs authorities in which the signature of the Inspector of Central Excise was there were for Rs. 9,06,984/- which was taken from Central Excise invoice. That th....
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....ich was prepared and filed in accordance with the earlier ARE-1 having same serial number, same quantity etc. and allowed export and the certificate was also given by the customs authorities towards the export of the goods. That there is sufficient evidence in the form of shipping bills, invoice, packing list, bill of lading etc. to prove that the goods have been exported. That the applicant also received sale proceeds from the foreign buyer. That under the circumstances the order of the Commissioner (Appeals) is improper and incorrect and is not maintainable. 4.8 That in the matter of export of goods Government policy stipulates that even for procedural infirmity no proceeding need be initiated provided the goods are exported. That the goods have been clearly exported, the infirmities pointed out that the value was not properly written and there is a small difference of Rs. 70/- is improper and incorrect. That this cannot be taken in order to jeopardize the interest of exporters and such order will deter the policy of the Government taken in the matter of export of the goods. That in spite of augmentation this will contract the export of the goods from the country. 4.9&emsp....
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....Inspector of Central Excise qualify those goods for export without payment of duty. That the applicant later changed the ARE-1 under self-sealing and self-certification without cancelling the ARE-1 sealed under proper Central Excise Officer. That Notification No. 43/2001, dated 26-6-2001 clearly mentions about procedure for cancellation under Para 2(v). 6.3 That the applicant at no point informed the department about the changing of ARE-1 rather took plea that it was done at the behest of verbal discussion with the then present customs officials when they mentioned that for getting DEPB benefit the ARE-1 need to be signed by jurisdictional Superintendent not by Inspector of Central Excise. That the applicant clearly indicated wilful suppression with intention to divert the goods for domestic sale rather intended export with intention to evade central excise duty. That the show cause notice issued and the order passed by the then Divisional Assistant Commissioner is just, legal and proper. 6.4 That the findings of adjudicating authority and Commissioner (Appeals) refuted the claim of the applicant that the same goods have been exported under same ARE-1 number on self-sea....
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....gation and hence time limit of one year for raising demand under Section 11A does not apply. In this case export obligation was under Letter of Undertaking....". 7. Personal hearing scheduled in this case on 5-8-2015 was attended by Shri Uma Shankar Goenka, Director of the company who made a written submission and reiterated the grounds of revision application. Shri Nilesh Kumar Rai, Assistant Commissioner, Central Excise, Kolkata-V attended the hearing on behalf of the department and reiterated the written submission. 8. Government has carefully gone through the relevant case records available in case files, oral and written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 9. Government first takes up the application for condonation of delay in filing the Revision Application by the applicant after a delay of two years, five months and ten days. The applicant has submitted that they were pursuing appeal before wrong forum (Hon'ble CESTAT) whereas in case of export of goods the appeal lies to Hon'ble Revisionary Authority. That the Order-in-Appeal dated 4-5-2011 was received by the applicant on 19-5-2011. Against the said Order, the appl....
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....M/s. J.V. Gokal Pvt. Ltd. Srilanka. During the course of the audit of the unit it was found that the duplicate copy of the said ARE-1 was not certified by Customs authority showing that the material meant for export was not ultimately exported. When the issue was brought to the notice of the applicant, they could not offer any comment on the question of the said ARE-1 unsigned by Customs but submitted vide their letter dated 10-6-2008 some documents stating to be proof of export. From the submitted documents it was observed that the relevant particulars of ARE-1 were absent in all the copies namely shipping Bill No. 5266480, dated 31-10-2005, Bill of Lading No CPICCU000338, export Invoice No. EX-109/2005-06, dated 31-10-2005 and packing list. Therefore the said documents as submitted did not satisfy the fact that the said material was exported under ARE-1 No. EX/109/2005-06, dated 31-10-2005. A show cause notice was therefore issued to the applicant for misdeclaring the fact of exportation with the intent to evade payment of Central Excise Duty and Education Cess to the tune of Rs. 1,45,117/- and Rs. 2,902 respectively. The show cause notice was adjudicated by the Assistant Commiss....
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....original and duplicate copies of ARE-1 shall be returned to the exporter, he shall retain the quadruplicate copy and send the triplicate copy to officer with whom bond is executed. 11.1.3 Where the exporter desires self-sealing, the authorized person shall certify on all copies of ARE-1 that goods have been sealed in his presence and shall send the original and duplicate copies along with the goods to place of export and the triplicate and quadruplicate copies to the jurisdictional Superintendent or Inspector of Central Excise within 24 hours of the removal of the goods. 11.1.4 At the place of export, the goods shall be presented along with the original and duplicate copies of ARE-1. Then Customs authorities upon examination of the goods shall allow export thereof and certify on the original and duplicate copies of ARE-1 that the goods have been duly exported citing the shipping bill number and date and return the original copy to the exporter and forward the duplicate copy to the officer with whom bond is executed by the exporter. 11.2 From the above stated statutory provision, Government observes any export clearances intended to be made without payment of duty,....