AI Drafter 
TaxTMI 
TaxTMI 
2019 (1) TMI 563
X X X X Extracts X X X X
X X X X Extracts X X X X
....ETA. They had removed grey fabrics to M/s D.D. Trading Co. A-2/4, UPSIDC Indl. Area Nandgaon Road, Kosikalan (U.P) against CT-3 Certificate No.22 dated 07.02.2002 and under the cover of ARE-3 Nos 54 to 62 dated 18.02.2002 to 27.02.2002. The unit received the warehousing certificate in respect of six consignments out of the eight above i.e ARE-3 Nos. 54 to 60 dated 18.02.2002 and handed over the same to the Range Superintendent without having any covering letter and therefore the confirmation regarding signature of the officer and reware housing of the goods under said AR-3 was sought from the jurisdictional Range Superintendent who denied the confirmation. It was alleged that the reware housing certificates were found to be fake and the Appellants were issued show cause notice V (Ch-54)3-05/Dem/2003 dated 04.05.2005 and is part of separate proceedings. In the case pertaining to present appeals, the consignments covered by the ARE-3 Nos 61 and 62 both dated 27.02.2003 for 56,560.80 Lms valued at Rs. 10,74,655/- were diverted to M/s Khan Garments, Patnachera, Andhra Pradesh vide fresh ARE Nos. 17 & 18 both dt. 25.04.2002 and invoice nos. 22 & 23 both dt. 25.04.2002. The consignments ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or confiscation of the finished goods and raw material consumed in finished goods and imposed redemption fine of Rs. 5,00,000/- in lieu of confiscation under section 34 and Section 125 of the Customs Act and ordered to be recovered from the Appellant in terms of B-17 bond furnished by them. The adjudicating authority held that the party has failed to submit genuine re-warehousing certificate within the stipulated time. The range Superintendent at Hyderabad where M/s ASHARANI Garment is located has reported that he has not re-warehoused any goods except 415 AR-3s pertaining to M/s Asharani. The Superintendent at Hyderabad has addressed letter to Range Superintendent of Appellant that from AR-3 Nos. 17 and 18, both dt. 25.04.2002 it is seen that the name of the Superintendent who has countersigned the receipt of goods was not figuring on AR-3s; that M/s Khan Garments has misused the EOU Scheme and they were imposed with duty and penalty; The officers of DRI Ahmedabad also conducted investigation against the said unit and available records of range were recovered by the investigation agencies; to verify the genuineness of the re-warehousing at this range level, there are no records/ r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ifying receipt and re-warehousing of the goods at Consignee 100% EOU. The contention of the revenue that no re-warehousing is done is absolutely false as the verification report states "that the diaries of former superintendent and inspectors could not be found "which cannot be a ground to hold that the goods were not reware housed. On the contrary the report dated 29.07.2002 submitted by the consignee's superintendent to Deputy Commissioner States that he has countersigned 415ARs pertaining to Asharani on which the total quantity works out to be apprx. 135.53 lakhs meters. That the contention of the Appellate authority that the Appellant did not attend the summon, it is clear from the order that the Appellant's son had informed the department that his father i.e the Appellant has gone on Haj. The department has not brought any substantive evidence to establish fake nature of re-warehousing certificates. There is no statement recorded of any consignee or his representative nor any investigation made at the end of 100% EOU consignee. No investigation or verification report even suggest that the CT3 Certificate received from M/s Asharani was fake or fabricated in any manner whatsoeve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the jurisdictional authority of consignee as evidence of non receipt of goods by M/s Asharani and held that the re-warehousing certificates submitted by the Appellant are fake. We are of the view that such approach is incorrect. Once the re-warehousing certificates have been produced by the consignor, the same has to be considered as genuine unless any evidence of non receipt of goods by the consignee is reported. Only for the reason that the diaries of the Superintendent or the Inspector having jurisdiction over the consignee M/s Asharani Garments are not available with the department or the records are with the investigative team of the department or that the reware housing certificate does not bear the name of the concerned Superintendent, the re-warehousing certificates cannot be considered as fake. The revenue has to show from their own records or from the investigation at the consignee's end that the goods did not reach the consignee. Since the department has made the allegation of non re-warehousing of the goods at the consignee's factory, it has to prove the same by substantial evidence and it cannot be made on assumption. It has to be shown as if the goods were not wareh....