TaxTMI 
TaxTMI 
2023 (5) TMI 431
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....rty Two Only) under the provisions of Section 11A(1) of the Central Excise Act, 1944 and order recovery of the said amount from M/s GPIL. ii) I confirm and order recovery of interest from M/s GPIL under the provisions of Section 11AB of Central Excise Act, 1944; iii) l impose a penalty of Rs. 1,00,000/-(Rs. One Lakh) on M/s GPIL, under Rule 25 of the Central Excise Rules, 2002, for wrongly availing Notification No. 46/2001 CE(N.T.) dated 26.06.2001 and clearing the goods without payment of duty to M/s Nuance Group India Pvt Ltd, Mumbai iv) Further, I impose a penalty of Rs.50,000/- (Rs. Fifty thousands) on M/s Nuance Group India Pvt Ltd, Mumbai, under Rule 26 of the Central Excise Rules, 2002." 2.1 Appellant is manufacturer of cigarettes falling under Chapter Sub-Heading 2402 and has cleared the same to M/s. Nuance Group (India) Pvt. Ltd. at the duty-free shop situated at Bangalore International Airport. The clearances affected to M/s. Nuance Group without payment of duty were deemed to be provisional as these were based on the undertaking given by M/s. Nuance Group. 2.2 Alleging that M/s Nuance Group India Pvt. Ltd. was not eligible for exemption f....
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....CX., dated 23.3.2010; Notification No. 36/2001-CE. (NT) dated 26.6.2001 exempt persons from taking registration under Rule 9 of the Central Excise Rules, 2002, in case where the assessee is manufacturing excisable goods by following the warehousing procedure under the Customs Act, 1962. By Notification No. 9/2013 - CE (NT) dated 23.5.2013, para 2A is inserted in Notification No. 36/2001 - CE (NT), whereby it is declared that a godown or retail outlet of a Duty Free Shop is appointed or licensed under the provisions of 58 of the Customs Act, 1962, such godown or retail outlet shall be deemed to be registered as warehouse under Rule 9 of the Central Excise Rules, 2002. Therefore registration under Rule 9 for duty free shop of Nuance Group was not warranted especially when their premise was registered under Section 58 of the Customs Act, 1962. CBEC Circular No. 970/04/2013 -CX., dated 23.5.2013 clarifies at para 1(i) it that duty free shops licensed under Section 58 of the Customs Act, 1962 shall be deemed to be registered under rule 9 of the Central Excise Rules, 2002 for the purpose of warehousing of excisable goods meant for sale to international....
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....r Section 58 of the Customs Act, 1962. M/s Nuance Group made applications through M/s.GPI under their letter dt.25.09.2008 to the Commissioner of Central Excise, Mumbai-IV requesting clearance of cigarettes, manufactured by M/s GPI without payment of any central excise duties, to M/s/Nuance Group(India) Private Limited, for sale by them through their Duty Free Shop (DFS) situated at International Airports at Hyderabad and Bangalore. 4. WHEREAS on the basis of said application/representation, the Commissioner of Central Excise, Mumbai IV had granted the permission to M/s Nuance Group and M/s GPI vide Letter F.No: V-30(109)T-2/Permission/MIV/08 dated 23.12.2008. The said permission was valid up to 16.05.2009 in respect of premises at Bangalore Airport and valid up to 11.03.2009 in respect of Hyderabad Airport. The permission under the above referred letter was granted for availing of the procedure of removal and receipt in bond, of cigarettes, without payment of duty, manufactured by M/s GFL. Mumbai and disposal by M/s Nuance Group through their (Nuance Group's) said Duty Free Shops, on the conditions mentioned therein and also subject to the compliance of conditions of ....
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....er the permission accorded to them by the Commissioner. 4.4 Rejecting the contentions raised by the appellant in their appeal, Commissioner (Appeal) has observed as follows: "04. I have carefully gone through the case records; written and oral submissions made by appellants and also relevant provisions of law relating to subject matter. The issue involved is duty liability on goods cleared to Duty Free Shop. The definition of export goods as per Section 2(19) of the Customs Act, 1956 says "any goods which are to be taken out of India to a place outside India". The subject goods were not taken out of Indian territory. Hence do not qualify as export goods. There is not evidence showing that goods were exported under valid S/B. Airways bill etc. The Board's letter no. 24/10/09/CXIV/8 dated 22.06.1970 was applicable only to ITDC run duty free shops. 05. The excisable goods are chargeable to Central Excise duty unless exempt. Appellant have not shown any order or authority of the department showing their eligibility for any exemption from payment of Central Excise duty as there was no provision of law for exemption from payment of Central Excise duty on these ci....
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....t PTB, Rajiv Gandhi International Airport, Shamshabad, under lease agreement with GHIAL for a period of 7 years, is hereby licensed under Section 58 of Customs Act 1962 as amended, as a Customs bonded warehouse for sale of Liquor, tobacco/ cigarettes, fashion apparels, fashion accessories, food and confectionaries, perfumes and cosmetics, technology and electronics etc. permitted to be sold from their four outlets at level D, E & F of the Passenger Terminal Building of the Rajiv Gandhi International Airport, Shamshabad (PTB), without payment of Customs Import Duties on Bond to Bond transfer from their Warehouse located at level B of the PTB, subject to the conditions described on reverse. The four Duty Free Shop outlets of level D, E and F of the Passenger Terminal Building of the new International Airport, Shamshabad are at the distance of about LIPS Kilometers from the Central Excise Hqrs. Office, Hyderabad". Thus it reveals that subject permission is only for imported goods and provide storage of subject goods without payment of Customs Import duties. No where it provides non payment Central Excise duty. 07. Thus, appellant have contravened provisions of rule 4 of Centr....
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....oms Act, 1962 (52 of 1962), as the case may be, and for sale therefrom, against foreign exchange to passengers going out of India or to the passengers or members of crew arriving from abroad, subject to limitations, conditions and safeguards as may be specified by the Central Board of Excise and Customs in terms of sub-rule (2) of rule 20 of Central Excise Rules, 2002." & Circular No 970/04/2013 dated 23.05.2013 stating as follows: (1) Registration of warehouse: (i) The godowns and the retail outlets of Duty Free Shops in the departure/ arrival side of the International Airport appointed/licensed under Section 57 or 58 of the Customs Act, 1962 shall be deemed to be registered under rule 9 of the Central Excise Rules, 2002 for the purpose of warehousing of excisable goods meant for sale to international passengers in terms of the aforesaid notification. (ii) For the purpose of control over the receipt, storage and sale of such excisable goods, the officers of Customs having jurisdiction over these godowns and retail outlets have been appointed as officers of Central Excise vide notification No. 08/2013-C.E.(N.T.), the dated 23rd May, 2013. 4.7 Further e....
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....arified that in such a situation, the liability will be of the merchant-exporter. Therefore, the action, if any, called for was against the exporter and not the present appellants. As observed above, there is no material on the record to suggest if any action had been taken against the exporter. Moreover, the initial lapse, if any, committed by the exporter, of not obtaining the Block Transfer Certificate in time, stood rectified as the same was produced after the clearance of the goods as is evident from the impugned order itself. Therefore, for the minor lapse on the part of the merchant-exporter, the appellants could not be saddled with the duty demand and penalty." 4.9 Similar view has been expressed in the following decisions were the issue was in respect of non fulfillment conditions of erstwhile Chapter X procedure by the consignee/ receiver of the goods: Ferro Alloy Corporation [1994 (71) ELT 931 (T)] Vikram Enterprises [2008 (226) ELT 437 (T)] IBP Co Ltd [1999 (110) ELT 900 (T)] Hindustan Petroleum Corporation Ltd. [2011 (269) ELT (T)] 4.10 The Circular No 581/18/2001, referred by Commissioner (Appeal) states as follows: "....
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.... 8 taking into account CT-2 certificate) and follow the procedure specified in Circular No. 579/16/2001-CX dated 26.6.2001 issued under rule 20. The serial number of the corresponding CT-2 shall be mentioned on the top of the each copy of ARE-3. Any nominal variations between the provisional debit indicated in the CT-2 and the actual duty involved in the goods removed as indicated in ARE-3, can be ignored. Immediately on receipt of goods, the provisional debit shall be converted into actual debit on the basis of the details mentioned in ARE-3. 5.4 The officer-in-charge of the warehouse will countersign application and despatch to the Range Office having jurisdiction over the factory / other approved premise of removal within one working day of receipt of the application. He will make suitable entry in his own record accordingly. 5.5 The assessees shall maintain private record (Warehousing Register) containing information relating to details of ARE-3 and invoice, date of warehousing certificate, description of goods received including marks and numbers, quantity, value, amount of duty, details of operation in the warehouse and new packages and their marks and numbe....