2023 (9) TMI 710

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....mmissioner (Appeal) upheld the adjudication order dated January 30, 2009 passed by the Additional Commissioner of Central Excise, Kolkata-VII, (in short, "the adjudication order"). In the said order, the adjudicating authority has confirmed the duty demand of Rs. 21,12,899/-, alleged to have been short paid by the Appellant in respect of the goods cleared to Nepal, by invoking the proviso to Section 11A of the Central Excise Act, 1944 (in short "the Act"), along with interest thereon under Section 11AB of the Act and imposed penalty equal to the duty involved in terms of Rule 25 of the Central Excise Rules, 2002 (in short, "the said Rules") read with Section 11AC of the Act . 2. Brief facts of the case are that the Appellant has a lubrican....

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....aising debit in PLA and/or Cenvat Account whereas in respect of the traded goods exported to Nepal the Appellant debited in the RG-23D the quantity as well as duty elements. 5. In the instant case: i) Invoices for export of goods for Nepal in prescribed form were prepared. Such Nepal Invoice shows the amount of duty paid or payable. ii) The export consignment was sealed with the mention of bottle seal Number under the supervision of Central Excise Officer. iii) Invoice under Rule 11 for goods manufactured and exported to Nepal were prepared and such manufacturer's Invoices were signed by the Superintendent. iv) With regard to traded goods exported to Nepal also corresponding dealers invoices under Rule 11 were prepared which wer....

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....order dated 14.10.2011. Aggrieved against this order the Appellant has filed the present appeal. 7. In their grounds of appeal, the Appellant submitted that export of the duty paid traded goods to Nepal was made in accordance with Notfn. No. 40/2001-CE(NT) dated 26.06.2001 and succeeding Notfn. No. 20/2004- CE(NT) dated 06.09.2004. As per the condition No. 2(b) of Notifn. No.40/2001 and succeeding Notfn.No. 20/2004, the excisable goods shall be exported after payment of duty, directly from the factory or warehouse except as otherwise permitted by CBEC by a general or special order. In this respect, CBEC's Excise Manual of Supplementary Instructions, 2005, dealing with export to Nepal and Bhutan in Part II of Chapter 8, para 2.1 states that....

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.... legally sustainable allegation or finding that the said goods were exported without payment of duty. There is no provision that in case of duty paid traded goods being exported, duty has to be paid under the Act once again. The dealers' invoices issued give cross reference of manufacturer's Invoice No. and date and the total duty paid by the manufacturer thereof and the proportional duty attributable to the quantity exported to Nepal. There is a clear linkage of the goods with the manufacturer along with its central excise Invoice number and date. Further, it can be seen that the manufacturer paid duty not on its assessable value but on the export value of the Appellant (dealer). Under these circumstances, the question of demanding duty, o....