AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 1039
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.... $1.6 per piece respectively in the Shipping Bill and invoice. The net weight of the cargo declared was 19002 Kgs. The consignment was consigned to M/s Saif Abu Al Maleh Trading, UAE. However on examination, the goods were found to be inferior quality and the net weight was only 1450 Kgs,, as against the declared net weight of 19002 Kgs, Thus it appeared to be a case of gross mis-declaration of the description as well as weight of the consignment. Further, investigation revealed that in fact M/s. Siddhnath Shipping received a consignment of goods containing Fancy Scarves (made from Polyester Knitted Fabrics) / Fancy Dupattas (made from 100% Polyester Filament Yarn) from M/s Cosmic Textiles Pvt. Ltd., 100% EOU, Jolwa, Surat under Cover of AR-3A all dated 21.01.2002. with corresponding excise invoices all dated 21.01.2002 describing goods as Fancy Dupattas (made from 100%PFY) and Fancy Scarves (made from Dyed Poly Knitted Fabrics). As per the documents, the subject consignment originating from the 100% EOU premises of M/s. Cosmic Textiles Pvt. Ltd. had been sent in full as per the details of AR-3As in the Kandla Special Economic Zone, which had been certified by the Preventive Office....
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.... interest and imposed penalties. Aggrieved by such impugned order, the appellants are now before this Tribunal. 03. Shri Devashish Trivedi, learned counsel appeared and argued on behalf of the appellants. He submits that Learned Commissioner wrongly held that Appellant had clandestinely removed the goods from the KASEZ after receipts of the same from M/s Cosmic. The unit was under physical control of the customs and other zonal /security agencies and the allegation of clandestine removal was merely based on assumption and presumption. Learned Commissioner failed to appreciate that the Appellant had in fact entered for export of the same goods which were received by them from M/s Cosmic within about 2.00 hours after the receipts of the same. These facts can be verified from the vehicle register of KASEZ. It is clearly established that same goods, and in the same packaging, having same marks and number, which were received from M/s Cosmic were loaded into the container and there was no clandestine removal or diversion. The Learned Commissioner failed to appreciate that the department has not brought on record the crucial evidence of the drivers of the trucks who have transported t....
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....nely removed, whether or not the goods were diverted or not? The SIIB has also ignored the facts that the goods were not actually diverted or clandestinely removed but the same goods were entered for export and thus any violation or evasion, if any, it was on the part of M/s Cosmic and Shri Natwar Malpani. The investigation conducted by the CBI has in fact confirmed that there was no clandestine removal as alleged in the show cause notice. 3.2 He argued that it has been confirmed by the investigation carried out by the CBI that in fact M/s Cosmic had not dispatched the goods from the 100% EOU of Cosmic, and Shri Malpani/Kulwant of M/s Cosmic had resorted to manipulations of weigh bridge slips and other documents to cover up their deeds. Learned Commissioner failed to appreciate that the mis-declaration of quantity, value and other particulars were resorted by M/s Cosmic / Shri Natwar Malpani in the Excise Invoices and their AR-3As so as to fulfill their export obligations and/or to evade duty without the knowledge of the appellant. The Learned Commissioner also failed to appreciate that M/s Cosmic was the beneficiary of exports. The goods were removed by M/s Cosmic from the 100%....
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....01 and remained in force till 28.02.2002 are the relevant Central Excise Rules which were in force at the relevant time. Thus as per Rule 17, the goods which are removed from a Free Trade Zone or a 100% EOU to the DTA are required to be removed under an invoice and on payment of appropriate amount of duty. The appropriate amount of duty is undoubtedly the duty which is levied and collected Under Section 3 of the Central Excise Act, 1944. It is important to mention here that prior to 11.05.2007, all excisable goods produced or manufactured in Free Trade Zone or a Special Economic Zone or by a 100% EOU were liable to excise duty which were to be collected at the rate of aggregate of the duties of Customs which would be leviable under the Customs Act, 1962 and the Customs Tariff Act, 1975 and thus for the purpose of rate of duty, the reference is required to be made to the Customs Act and the Custom Tariff Act whereas the nature of duty continues to be the Central Excise Duty, which is the appropriate duty required to be demanded under the provisions of the Central Excise Act, 1944 and Rules made there under. In the present matter demand of duty in respect of Free Trade Zone / EOU is ....
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....s who has transported the disputed goods in domestic market. It is well settled that the charge of clandestine removal of goods, cannot be established on assumptions and presumptions. Such a charge has to be based on concrete and tangible evidence. In this context, reference may be made to Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. J172 (S.C.), wherein the Apex Court has observed that demand of duty cannot be raised on the strength of assumptions and presumptions. There should be sufficient evidence of the removal of the goods alleged to have been manufactured and cleared without payment of duty. The charge of clandestine removal must be based on tangible evidence and not on inferences involving unwarranted assumptions. This very principle of law had been applied by the Tribunal in a number of cases and out of those, few are, Amba Cement and Chemicals v. CCE - [2000 (115) E.L.T. 502 (Tribunal) = 2000 (90) ECR 265], Gurpreet Rubber Industries v. CCE - 1996 (82) E.L.T. 347 and Madhu Foods Products v. CCE - 1995 (76) E.L.T. 197. 5.1 Further , in Radha Madhav Corporation Ltd. v. CCE, Daman [2012 (284) E.L.T. 369], the issue was raised in a case where the allegation wa....
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....s Cosmic were entered for export. 5.4 When the investigation and the evidence brought on record were considered, it revealed that the goods which entered into the SEZ, the same goods have been presented for export. The SEZ is a bonded area and every movement of goods whether incoming or outgoing are recorded at gate register under the supervision of gate staff and customs. In the present case, there is evidence of entry of goods in the SEZ by the appellant M/s. Siddhnath Shipping whereas, there is no evidence of removal of goods from the SEZ in DTA. The demand of customs duty is on the pretext that the goods which have been cleared from EOU have entered in the appellant's SEZ unit and thereafter, the same was diverted into DTA. Even if it is presumed that the goods have been diverted before bringing into SEZ, the customs duty which is for the removal of goods from SEZ cannot be demanded. In the present case, it is evident from the investigation that the goods which have been received by the appellant and the same was presented for export were not cleared from the 100% EOU of M/s. Cosmic but the same were loaded at Ambaji Market, Surat. In such case, there is no change of goods w....