Customs, Excise and Gold Tribunal - Mumbai
The Sidheshwar Ssk Ltd. vs Commissioner Of Customs And Central ... on 4 August, 2003
ORDER Jyoti Balasundaram, Member (J)
1. After hearing both sides for some time on the application for waiver of pre-deposit of duty of Rs. 6,58,739/- and penalty of Rs. 70,000/- I find that it is possible to decide the appeal itself at this stage. Hence after waiving pre-deposit of duty and penalty I proceed to take up the appeal itself for disposal with the consent of both sides.
2. The duty demand has been confirmed by applying the provisions of Rule 57CC which according to the appellants are not attracted as the goods in question, namely, ethyl alcohol (rectified spirit) on which the duty demand has been confirmed, were exported. I find that the lower appellate authority has held that sufficient proof of export of goods in question was not produced before him. Para 13 of the impugned order which is relevant in this connection is reproduced below:
"13. It is evident from the photocopies of the clearance documents viz. Invoices issued under Rule 52 A of the Central Excise Rules, 1944 that no duty had been paid by the Appellants at the time of clearance of the goods under reference. Though, the name of the consignee was shown as "M/s. Ruia & Ruia" and the goods were also shown for "overseas export" but no corresponding AR-4 has been produced by the Appellants. The photocopies of some of the Shipping Bills and Bills of Leading produced by the Appellants do not evidence that the goods mentioned therein were exported by the Appellants. Therefore, it can not be conclusively proved with the help of these photocopies of the aforesaid documents produced by the Appellants that they had exported the goods, in question, under bond as provided under Rule 1e ibid. Even otherwise, since the goods, under reference, were chargeable to Nil rate i.e. Tariff rate being nil, its export under Rule 13 and question of seeking any relief under Trade Notice No. 86/1996 dated 01-09-1996 does not arise."
3. The appellants submit that the State Excise authorities have certified that the entire quantity of ethyl alcohol has been exported and also submit that the certificate of the State Excise Inspector was submitted to the office of the Commissioner (Appeals).
4. In the light of the above this is a fit case for remand to the lower appellate authority for fresh decision in the light of evidence in the form of AR4s and other documents to evidence proof of export of the goods in question. I order accordingly. In the result the impugned order is set aside and the appeal is allowed by remand to the Commissioner (Appeals) who shall pass fresh orders after extending a reasonable opportunity of hearing to the appellants and permitting them to place such evidence as they deem necessary to substantiate their claim that the goods on which the demand has been confirmed, were exported, thereby not attracting any duty liability thereon.