Custom, Excise & Service Tax Tribunal
M/S. La Mansion Granites Ltd vs Cc,Ce&St, Hyderabad on 27 March, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:27/03/2013
Date of decision:27/03/2013
Application No.E/Stay/166/2012
Appeal No.E/298/2012
(Arising out of Order-in-Appeal No.83/2011(H-III)CE dt. 30/09/2011 passed by CCE, Hyderabad)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. B.S.V. Murthy, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. La Mansion Granites Ltd.
..Appellant(s)
Vs.
CC,CE&ST, Hyderabad
..Respondent(s)
Appearance Mr. R. Muralidhar, Advocate for the appellant.
Mr. R. Gurunathan, Additional Commissioner(AR) for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] This application filed by the appellant seeks waiver of predeposit and stay of recovery in respect of the adjudged dues. After perusing the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we take up the appeal.
2. In adjudication of a show-cause notice dt. 25/01/2010 which had mainly demanded an amount of Rs.31,57,769/- as Central Excise duty and education cesses on goods claimed to have been cleared for export during the period from April 1996 to June 2008, for want of proof of export, the original authority confirmed the said demand along with another minor demand of duty of Rs.26,376/- against the party and imposed on them equal amount of penalty besides a proposal to levy interest on duty. Aggrieved by the Order-in-Original, the party preferred an appeal to the Commissioner(Appeals) who, for the purpose of considering that appeal on merits, directed the appellant to predeposit an amount of Rs.7,89,443/- (being 25% of the duty demanded), which was deposited by the party. The appellant authority while examining the grounds of the appeal against the Order-in-Original noted that no documentary proof of export was forthcoming barring one export consignment. On this basis, the appellate authority dropped demand of duty attributable to one export consignment and upheld the rest of the demand of duty. It also vacated the penalty in toto. Still aggrieved, the party is in appeal before us.
3. The learned counsel for the appellant submits that, in respect of 16 export consignments, the original and/or duplicate ARE1s are available and that, in respect of 13 other export consignments, only copies of ARE1s are available. It is further pointed out that all the ARE1s (whether original, duplicate or Xerox copy) carry endorsements made by the Customs officer concerned. According to the learned counsel, these documents are liable to be accepted as proof of export of the 29 consignments. It is submitted that these documents could not be produced before the original authority or the appellate authority. Given an opportunity, these can be produced before the original authority for de novo adjudication. The learned counsel particularly submits, in respect of ARE1 No.10/97-98 dt. 17/03/1998, that the goods covered under this document were damaged in transit and received back at the appellants factory and that D3 intimation thereof was given along with police report to the Range Officer and that the said D3 intimation was duly acknowledged also. It is submitted, on the facts, that no amount of duty should have been demanded in respect of the said goods.
4. We have heard the learned Additional Commissioner(AR) also who has reiterated the findings of the original and first appellate authorities. With regard to ARE1 No.10/97-98 ibid, he submits that the claim of the party was duly considered by the learned Commissioner(Appeals) and a decision was rendered thereon stating valid reasons. It is submitted that no remission of duty was claimed by the party upon receipt of the damaged goods in their factory and that even the above submissions were not made before the original authority.
5. After giving careful consideration to the submissions, we are of the view that the original authority should undertake de novo adjudication of the case after giving the appellant a reasonable opportunity of adducing documentary evidence of proof of exports and of being personally heard in respect of all the export consignments. A list of 29 consignments has been placed before us, which includes 16 cases where original and/or duplicate ARE1s bearing endorsements of Customs officer are said to be available and 13 cases where Xerox copies of ARE1s carrying similar endorsements are said to be available. The appellant will be at liberty to produce all such documents before the adjudicating authority and establish their claim. Insofar as ARE1 No.10/97-98 dt. 17/03/1998 is concerned, we find that the appellant claims to have received the goods back in damaged condition and to have given D3 intimation thereof along with police report to the Range Officer. The amount of duty demanded on the goods covered by the said document is Rs.1,09,070/-. If the goods covered by ARE1 No.10/97-98 was received back in damaged condition during the period of dispute (April 1996 to June 2008), the fact should normally have been disclosed to the investigating officers. It is not in dispute that the appellant did not even plead any such fact in their reply to the show-cause notice or otherwise before the adjudicating authority. For the first time, pleadings were made before the Commissioner(Appeals). The learned Commissioner(Appeals) considered the plea. He found that no remission of duty had been claimed on the damaged goods and that the goods were not exported either. The exemption from payment of duty on the goods, claimed by the party, was, therefore, declined. We have found nothing wrong with this decision of the Commissioner(Appeals). Therefore, it is made clear that the consignment of goods covered by ARE1 No.10/97-98 would not be part of the subject matter of our remand order and the appellant will be liable to pay duty of excise on the goods. What stands remanded is the dispute pertaining to the remaining 32 ARE1s. Contextually, we observe that the de novo adjudication of the case shall be completed within a reasonable period by the original authority having regard to the fact that the dispute dates back to 1996.
6. The stay application also stands disposed of.
(Pronounced and dictated in open court) (B.S.V. MURTHY) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 6