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2017 (12) TMI 382
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....he parental unit. As the parental unit did not mention the goods cleared against ARE-1 No.19 and 20 in the shipping bills, it was alleged that the goods covered under ARE-1 have been cleared clandestinely by the appellant without payment of duty. In these sets of facts, the proceedings were initiated against the appellant to demand duty alongwith interest and to impose penalty on the appellant. The matter was adjudicated and it was held that the goods supplied under ARE-1 certificate were not exported, therefore, the demand of duty was liable to be paid by the appellant. Aggrieved with the said order, the appellant is before us. 3. Learned Counsel for the appellant submits that it is the inadvertent mistake of the parental unit, who failed to mention ARE-1 number on the shipping bills. It is his contention that both units are engaged in the manufacture and export of goods. There is no case found by the Revenue that any goods have been cleared by appellant in domestics market in the guise of ARE-1 certificate. Moreover, the details of the goods cleared for export trough shipping bills have been reconciled wherein it shows that the goods mentioned in ARE-1 No.19 and 20 have duly e....
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....vered in ARE-1 No.19 and 20 have been mentioned in the invoices covered in shipping bills. In that circumstance, the charge of clandestine removal of the goods is not sustainable. 8. Further, we find that there was procedural mistake committed by the parental unit by not mentioning the ARE-1 No.19 and 20 in the shipping bills, in that circumstance, the penalty is imposed under Rule 27 of Central Excise Rules,2002 to the extent of Rs. 5,000/- is confirmed. 8. In view of the above discussion, the following order is passed: (a) the demand of duty has been set aside (b) The penalty imposed on the appellant under Rule 25 of Central Excise Rules, 2002 read with section 11AC of Central Excise Act, 1944 is also set aside. (c) The penalty of Rs. 5,000/- is imposed on the appellant under Rule 27 of Central Excise Rules, 2002. 9. The appeal is disposed of in the above terms. (Pronounced in the open court on) Per : Devender Singh Having gone through the Final Order recorded by my Ld. brother Member (Judicial), I proceed to record a separate order. 2. Admittedly, the appellants did not submit the original and duplicate copies of ARE-1s No. 19 dt. ....
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....har filed with this office in February 2006, the request for endorsement against the said Shipping Bills mentioned in your letter dt. 22.06.2006 has already been rejected on 07.04.2006 and 03.06.2006 as the subject ARE-1's were neither filed at the time of filing of the said shipping bills nor were produced at the time of actual shipment for the required endorsement on the reverse of ARE-1. Further, the subject Shipping Bills did not carry any information about the goods having been manufactured by other than the exporting unit i.e. M/s Broadways Overseas Ltd, G.T. Road, Suranassi, Jalandhar. Accordingly ARE-1 Bol-2/19/05-06 dt. 05.10.2005 and Bol-2/20/05-06 dt. 06.10.2005 could not relate with the exports made under the said Shipping Bills." 5. As rightly observed by the Commissioner, on the said Shipping Bills, M/s Broadway Overseas Ltd. (Unit No.1), G.T. Road, Suranussi, Jalandhar has been mentioned as manufacturer/exporter and there is no mention of ARE-1 Bol-2/19/05-06 dt. 05.10.2005 and Bol-2/20/05-06 dt. 06.10.2005 on the said Shipping Bills. He has also recorded that the Divisional Assistant Commissioner did not accept the proof of export. 6. The Ld. Advo....
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....Commissioner in Para 12.2 in his order and the same has not been rebutted. 9. In view of the above, the appellants have failed to substantiate their claim that they had exported the goods cleared from Unit No. 2. 10. The contention of the appellants that there is no domestic market for impugned goods has not been substantiated either before the Commissioner or before this Tribunal 11. Mere Presentation of the ARE-1 document is no proof that the goods were even either presented for the examination. It has no evidentiary value with regard to actual export of goods in the absence of the certification at the required place on the back of the ARE-1 by the both designated officers (emphasis supplied). The Hon'ble Supreme Court in the case of Competent Authority Vs. Barangorng Jute Factory and Ors 2005 (13) SCC 477 has held as under:- " It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. " 12. In the case of State of Jharkhand and Ors Vs. Ambey Cement and Another's 2005 (1) SCC 368 = 2004 (178) ELT 55 SCC, Para 26 ....
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....e respondents case is that it is mandatory procedure whereupon the entire rebate claim shall be founded. 23. From a bare reading of Rule 18 of Rules, 2002 it is evident that in order to entitle a person to claim rebate, it is open to Government of India by notification to provide a procedure for claiming rebate benefit. It is in purported exercise of power thereunder that the Notification dated 06.09.2004 has been issued which specifically contemplates filing of ARE-I, verification of goods sought to be exported and sealing of goods after such verification by authorities on the spot, i.e., factory premises etc. In case the procedure of filing ARE-I is given a go-bye, the authorities available on spot shall not be able to verify that the goods sought to be exported are same, the description whereof has been mentioned in the vouchers or not. The objective is very clear. It is to avoid surreptitious and bogus export and also to mitigate any paper transaction. 24. It also cannot be doubted that ignorance of law is no excuse to follow something which is required to be done by law in a particular manner. It is well established that when law requires something to be done....
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....entral Excise Rules, 2002 read with section 11AC of the Central Excise Act, 1944, is not imposable on the appellant; or the Member (Technical) is correct in holding that there is no merit in the appeal and the same is required to be dismissed. 2. As the facts of the case already stand narrated in the order proposed by learned brother Member (Judicial) as also Member (Technical), I find that the narration of the same can be avoided so as to avoid redundancy. 3. The short issue required to be decided as to whether the goods covered by ARE-1 Nos.19 & 20, dated 05.10.2002 and 06.10.2005 were cleared by the assessee's parent Unit for export purposes, even though, the same were not mentioned in the shipping bills and whether the same were diverted clandestinely to the domestic market. Learned Member (Judicial) has accepted the assessee's stand that non-mentioning of the said ARE-1 's in the shipping bills was on account of an inadvertent mistake of the appellant's parent Unit and there are other evidences on record showing that the said export had actually taken place. He had also gone by the fact that apart from making bald allegation of clandestine clearances, Rev....
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....upon them. Admittedly, Revenue has not been able to produce any evidences to that effect. As such, I am of the view that the inadvertent mistake of non-mentioning of ARE-1 Nos. 19 & 20 in the shipping bills cannot lead to any adverse conclusion against the assessee, especially, when such exports stand established by other parallel documents. Reliance by learned Member (Technical) on the decision of Allahabad High Court in the case of Vee Excel Drugs and Pharmaceuticals Pvt. Ltd., Vs Union of India reported in 2014 (305) E.L. T.150 (All.) may not be appropriate inasmuch as the issue in that case was relatable to the assessee's rebate claim in respect of exported goods. It was in that scenario, the Hon'ble court observed that the proper procedure for export is required to be followed and the factum of export is required to be established by production of essential documents for the purpose of claiming export benefits. However, in the present case, the issue does not relate to any export relief claimed by the assessee but the same is relatable to the allegations made by the Revenue for clandestine clearance of the goods. As already observed, such allegations are required to be....