AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1436
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....OU/WI/2009-10 dated 07.04.2009, containing Brass Sanitary Fitting weighing 9828 Kgs, were returned to their factory and therefore department in absence of proof of export was of the view that the same were not exported. It is the case of the department that goods cleared for export have been diverted in the local market, and therefore the Appellant has contravened relevant provisions of the Central Excise Act/Rules/Notifications, etc., and hence is liable for payment of excise duties. 1.2 Consequently, the Impugned Order dated 27.02.2015, has confirmed the demand for Central Excise duty amounting to Rs. 6,12,156/- under Section 11A (4) read with Section 3 of the Central Excise Act. Penalty amounting to Rs. 6,12,156/- under Section 11AC of the Central Excise Act. Furthermore, the Impugned Order also confirms that the Custom Duty amounting to Rs. 3,02,302/- is under Section 28(4) read with Section 72 of the Customs Act, and the Penalty amounting to Rs. 3,02,302/- is under Section 114A of the Customs Act. 1.3 The appellant submits that they clearly informed the department about export of goods and return prior to the export of said goods. In fact permission was granted by the de....
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....cuments shows receipt of goods in the factory of the appellants. The appellant submit that the above action of the learned appellate Authority,about relying upon only the statement of the Bhavin R Shah in the matter and completely disregarding other 'documentary evidences' in the matter, as discussed hereinabove, is untenable in law and hence the impugned order is unsustainable in law being based on erroneous findings. 3. The impugned order, based on assumptions and presumptions and irrelevant investigation, is unsustainable in law. 3.1 The appellant submitted that the impugned order is unsustainable in law since the same is based on assumptions and presumptions and also irrelevant investigation, as far as present appellant is concerned. 3.2 The appellant submitted that investigation in the present matter, which culminated in issuance of the impugned order, started on the intelligence that M/s. Harsh International and M/s. Indu Overseas Pvt. Ltd., EOU units based at Jamnagar, were engaged in exporting their goods by inflating the weight of export consignment to wrongly claim fulfilment of their export obligation; that these two units were clandestinely removing/selling imp....
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.... have contravened relevant provisions of Central Excise Act/Rules/Notifications etc. and hence liable for payment of excise duties. 7.2 The appellant submitted that above allegation of diversion of export goods in the local market is untenable in law in view of the fact that the consignment of subject ARE- 1 was duly received back by the appellant in their factory premises and duly recorded in relevant records . The appellant submit that it is settled legal position that once export consignment, removed without payment of duty, is returned back in the factory premises, central excise duties cannot be demanded on such goods. 8. The appellant refer to and rely upon following judicial pronouncements in support of above submissions; * Evershine Rubber Industries V/s. CCE, Kolkata-I 2005 (186) ELT 599 (Tri-Kolkata) * Maruti Udyog Limited V/s. CCE, Delhi-III 2004 (171) ELT 488 (Tri-Del.) * CCE & C, Bhubaneswar-1 V/s. Birla Tyres 2004 (169) ELT 300 (Tri - Kolkata) * La Mansion Granites Ltd. V/s. CCE, Hyderabad 2003 (157) ELT 115 (Tri-Bang) 9. The appellant also referred to CBEC's central excise manual, wherein, at para 2.1 of part V of chap....
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....recovery of custom duty of Rs. 3,03,302/-, is unsustainable in law. 14. The impugned order, confirming recovery of interest under Central Excise and Customs provisions, is unsustainable in law, 14.1 The appellant say and submit that the impugned order, confirming recovery of interest under Central Excise and Customs provisions, is unsustainable in law since duty demand under Central Excise and Customs provisions itself is untenable in law, as discussed hereinabove. 15. The impugned order, imposing penalties under Central Excise and Customs provisions, is unsustainable in law. 15.1 The appellant submitted that the impugned order, imposing penalties under Central Excise and Customs provisions, is unsustainable in law since duty demand under Central Excise and Customs provisions itself is untenable in law, as discussed hereinabove. The appellant further submitted that imposing penalty for failure to carry out the statutory obligation is the result of quasi criminal proceedings and penalty would not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of dishonest conduct or acted in conscious disregard of its obligation ....
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....ed that the goods have already been received on 18.8.2009 and on the contrary he has deposed u/s 108 of Customs Act on 23.8.2009 that the goods under questions are sold in the open market and accordingly he paid the duty on the same on 23.8.2009. Exhibit C wherein intimation for cancellation of 9828 kgs of sanitary fittings declared under ARE-1 No. 3/09-10 dated 7.4.2009 is made on 18.8.2009 is after through, manipulated and not actual based on my above observations." 17. It was further submitted by the AR as follows: 17.1 That the statement of Shri Bhavin Ratilal Shah, Partner of Western was recorded wherein he, inter alia, stated that Western was a partnership firm and working under 100% EOU since 2001 and he was looking after all the works related to the production and sales of Western; that the goods covered under ARE1 WI/EXP/003/2009-10 dtd. 07.04.2009 were exported to M/s B-Link Building Material LLC, Dubai, U.A.E through consignee M/s Golden Elephant Trading LLC. Dubai, UAE owned by Shri Anand C Patel, was of Brass Sanitary Parts collectively weighing 9828.000 Kgs (net weight). It was cleared from their factory on 07.04.2009 transported to JNPT, Mumbai under L....
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....d clearance of the goods covered under the said ARE-1s were also liable for confiscation under Section 111(0) of the Customs Act, 1962. Hence, SCN dtd. 10.02.2012 was issued by Joint Director, DRI, AZU, Ahmedabad which was adjudicated by Addi Commr., Customs & CE, Rajkot confirming the said demand in the SCN 18. In rejoinder point wise grounds were taken relied by the party by indicating case law on different proposition as follows:- Central Excise Duty cannot be demanded once the export consignment, removed without payment of duty, is returned back in the factory premises. * Maruti Udyog Limited V/s. CCE, Delhi-III-2004 (171) ELT 488 (Tri-Del) * Affirmed in CCE, Delhi-II Maruti Udyog-2010 (253) ELT 22 (Punjab & Haryana High Court) * Evershine Rubber Industries V/s. CCE, Kolkata-I-2005 (186) ELT 599 ( Tri-Kolkata) Customs Duty cannot be demanded on the raw materials used in the manufacturing of the finished goods. * Commissioner of Central Excise, Surat-I vs. Cupro Recyline Pvt. Ltd. 2016 (335) ELT 753 (Tri.-Ahmd) * Maintained in Commissioner v. Cupro Recyline Pvt. Ltd. - 2016 (335) E.L.T. A218 (S.C.)] * Abu....
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....ct is that goods in the instant case were not exported which position is agreed upon by the department. Stock variance has also not been reported by the department. 20.1 Department is of the view that the goods were diverted and therefore duty has to be paid and also goods become offending. The evidence produced and taken cognizance of by the original authority clearly indicates that the goods returned and ARE-1 was cancelled. The documentary version if was doubted then the department should have at least recorded statements of Superintendent to establish that the same was forged or was given by a compromised official. None of the same is present in this case. Documentary evidence cannot simply be brushed aside on the basis of assumption and presumption and the use of expression "after thought". It is not even brought on record by the AR, as to whether the stock position available with the appellants exhibited any discrepancy to indicate that the stock was at variance despite cancellation of ARE-1 and return of goods. It is also not brought on record as to whom the goods were sold. Investigation has been haphazard in a half hearted manner. It is not even indicated that the goods....
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....iaries 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 re-warehousing 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 warehoused then where were the same diverted. In present case there is no evidence of diversion of goods. The appellant has submitted the lorry receipt and the payment details to support the contention of clearance of goods to M/s. Asharani Garments. It is also not the allegation that the goods were not consigned by the appellant. The non-attending of summons by the owner as he was on Haj and the same was communicated by his son cannot lead t....