2021 (1) TMI 805

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....acts and in the circumstances of the case and in law, the Appellate Tribunal was right in remanding the proceedings to the adjudicating authority for passing fresh order when neither the Appellant nor the Respondent requested for remand of the proceedings ? (b) Whether in the facts of the case and in law the Appellate Tribunal was right in not setting aside the order of the Respondent after having held that demand for duty cannot be sustained for non-compliance of procedure under notification no.42/2001-CE ?" 3. The Appeal is ordered to be admitted on the above referred two substantial questions of law and is taken up for final hearing forthwith with the consent of the learned counsel appearing for the parties. 4. The appellant came to be served with a show-cause notice dated 20th January 2016 issued by the Commissioner of Central Excise and Service Tax, Valsad Commissionerate, calling upon the appellant to show-cause as to why :- (i) Excisable goods valued at Rs. 19,67,64,933/- during the period from March 2011 to February 2013 should not be confiscated as per the provisions of Rule 25 of the Central Excise Rules, 2002. (ii) Central Excise duty involved amounting to Rs.....

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.... M/s.Cebon Apparels Pvt. Ltd., C-4/5/18/19/20/22, Udyog Nagar, Navsari under Section 11AC(1)(c) of the Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002. However, I give them option to pay reduced penalty of Rs. 52,94,797/- (@ 25% of Rs. 2,11,79,188/-) in terms of Section 11AC(1)(e) ibid read with Explanation 1(iii) to Section IIAC ibid subject to the condition that duty of Rs. 2,11,79,188/- and interest thereon as well as reduced penalty of Rs. 52,94,797/-, all are paid by them within 30 days of the receipt of this Order." 9. The appellant, being dissatisfied with the order passed by the Commissioner referred to above, preferred an appeal before the appellate tribunal. The appellate tribunal passed the impugned order dated 3rd December 2019, holding as under : "5. We have carefully considered the submission made by both the sides and perused the records. We find that in respect of export of readymade garments made by the appellant, the Excise Duty demand was confirmed by the Adjudicating authority only on the ground that the procedure prescribed under Notification No.42/2001-CE(NT) was not followed. 6. We find that the government has prescribed a simp....

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....assed by the Tribunal and the said procedure had in fact been followed. The Tribunal has also recorded a finding that as such no dispute had been raised as regards the actual export of the goods. However, the Tribunal thought fit to remand the matter directing the adjudicating authority to take into consideration the documents evidencing actual export of goods. 12. Being dissatisfied with the order passed by the Tribunal remanding the matter to the adjudicating authority, the appellant is here before this Court with the present appeal. 13. We have heard Mr.Prakash Shah, the learned senior counsel assisted by Mr.Dhaval Shah, the learned counsel appearing for the appellant, and Mr.Jaimin Gandhi, the learned standing counsel appearing for the respondents. 14. The controversy involved in the present litigation is in a very narrow compass. We are of the view that there was no good reason for the appellate tribunal to remand the matter to the adjudicating authority. We take notice of the fact that during the pendency of the adjudication proceedings certain information was called for by the Deputy Commissioner from the Superintendent, Central Excise Range-I, Navsari. We may refer to th....

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....te, Valsad and addressing to your kind office and this office letter of even dated 04.01.2017 on the above cited subject matter. In this connection the revised report is as under : (i) Yes, they are eligible to avail the benefit extended vide Circular No.705/21/2003-CX dated 08.04.2003 and Circular F.No.609/162/2002-DBK dated 14.11.2003. The assessee are primarily exporting all their production. The C/TAXAP/55/2020 JUDGMENT cleared waste and rejects for home consumption on payment of duty which does not exceed 5% of their export turnover during the SCN period. (ii) Yes. (iii) Yes, checked the Xerox Copy of Shipping Bill and BRC for the entire period covering the SCN. The goods exported, under AIR Drawback Scheme and Focus License. The goods concerned to Shipping Bill No.6527788 and Shipping Bill No.6527786 are not exported, due to ship sink in the sea (as stated by assessee) Dated 05.10.2011 Duty 10% FOB GBP FOB-6527788 - 631132-8 7909.98 6527786 - 351779-2 4405.5 (iv) N.A. As per Circular No.96/2003-Cus dated 14.11.2003, through Central Excise Circular No.705/21/2003-CX dated 08.04.2003, the Board, after considering the specific situation of the readymade garment sect....