Customs, Excise and Gold Tribunal - Calcutta
Tarini Polytex (P) Ltd. vs Commissioner Of Central Excise on 1 April, 2005
Equivalent citations: 2005(103)ECC59, 2005(186)ELT604(TRI-KOLKATA)
ORDER M.P. Bohra, Member (J)
1. Heard Shri A.D. Ray, Advocate for Appellant and Shri J.R. Madhiam, JDR for Respondent. Mr. Ray filed additional affidavit which was taken on record. Mr. Ray submits that the goods were exported on 20th June, 1997 within one month from the concerned AR4 which is dated 30th May, 1997 within the stipulated time. The mate receipt Nos. were given as 149315 and 149317, dated 16-6-1997 but the certification of the AR4 was done on 15-10-1998. Therefore, he could not file the proof of exportation on date of adjudication of the order. He submits that the appeal may be allowed with consequential relief to appellant.
2. Learned DR supports the impugned order.
3. In present case the duty of Rs. 2,01,263.00 has been confirmed on the basis that the mate receipt reference No. and the date of selling and name of the vessel M.V. London MSK V-9708 and the proof of export has not been filed by the appellant. Therefore, the Assistant Commissioner of Central Excise and Customs, Sambalpur-II Division has confirmed the duty of Rs. 2,01,263.00 and ordered for the recovery of the same. He also imposed the penalty of Rs. 20,000.00 under Rule 14A of Central Excise Rules, 1944 and also directed to pay interest @ 20% per annum under Section 11AA of Central Excise Rules, 1944. From perusal of the document which has been submitted by the appellant with the memo of appeal, it is evident that the goods were exported in vessel M.V. London MSK V-9708 on 20-6-1997 i.e. within one month from the concerned AR4 which is dated 30th May, 1997. Therefore, the goods were exported within the stipulated time. The mate receipt Nos. were given as 149315 and 149317 both dated 16-6-1997. The certification of the AR4 was done on 15-10-1998. Therefore, the appellant could not file the respective documents before the adjudicating authority on 14-1-98 and 22-1-98 when the matter was heard by the adjudicating authority. They could not produce the proof of export because it was not certified by the authority concerned. The parties cannot be penalised for the lapses of the Respondent. The proof of export was not in the power or possession of the appellant and therefore he was not in a position to produce the same before the adjudicating authority. The matter requires fresh adjudication in light of above discussion.
4. I, therefore, set aside the impugned order and remand the matter to the adjudicating authority for fresh consideration in light of the above facts of the case after affording opportunity of hearing to the appellant.
Pronounced in the Open Court