Custom, Excise & Service Tax Tribunal
Commissioner Of C.Ex. & S.Tax vs M/S Ekta Synthetics Pvt. Ltd on 7 September, 2016
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/727/2008-DB
[Arising out of OIA No.KKS/116/DAMAN/2008, dt.12.03.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Daman]
Commissioner of C.Ex. & S.Tax,
Vapi Appellant
Vs
M/s Ekta Synthetics Pvt. Ltd. Respondent
Represented by:
For Appellant: Shri Alok Srivastava, A.R. For Respondent: None For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:07.09.2016 Order No.A/110880/2016, dt.07.09.2016 Per: Dr. D.M. Misra This appeal is filed against OIA No.KKS/116/DAMAN/2008, dt.12.03.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Daman.
2. None present for the Respondent despite notices issued from time to time. The matter was earlier listed on 01.10.2015, 03.12.2015, 12.01.2016, 11.04.2016, 25.05.2016, 25.07.2016. Some of the notices sent to the address mentioned in the EA3 application were returned back being undelivered. On all of these occasions, neither respondent remained present nor any adjournment request has been made. Since the matter is pending for more than 8 years, the appeal is taken up for disposal after hearing the learned Authorized Representative for the Revenue.
3. Briefly stated the facts of the case are that the respondent is an 100% EOU, cleared 222050.00 L.Mtrs of Knitted Fabrics valued at Rs.44,41,000/- against CT3 No.58, dt.28.11.2011 to M/s Asharani Garments, Hyderabad under respective AR3A during the period 07.02.2002 to 22.07.2002 involving a total duty of Rs. 30,07,889/-. Since the respondent failed to establish that the goods cleared against CT3 certificate have not reached at the consignees end by production of proper rewarehousing certificate, a demand notice was issued to them for recovery of Rs.30,07,889/- in 2003 for recovery of such duty with proposition for imposition of penalty. On adjudication, the demand was confirmed and penalty of equal amount was imposed under Rules 25 of Central Excise Rules, 2002. Aggrieved by the said order, the respondent preferred an appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals), taking into consideration the endorsements made in the relevant AR3A as rewarehousing certificate, allowed their appeal. Aggrieved by the said order, the Revenue is in appeal.
4. The learned Authorized Representative for the Revenue vehemently argued that the clearance under CT3 certificate is without payment of duty is conditional, inasmuch as the consignee of the goods/respondent is required to establish that the goods have reached at the cosignees end. It is his contention that from the endorsement made in relevant respective AR3As, it is not clear whether the goods mentioned therein cleared against the CT-3 certificate have in fact, received in the premises of the consignee. It is his contention that the Commissioner (Appeals) has erred in observing that the respondent have produced the relevant rewarehousing certificate in the form of AR3A and hence untenable in law. It is his argument that after the receipt of the goods at the consignees end, a proper rewarehousing certificate of the goods mentioned in the relevant AR3A, is issued by the Range Superintendent. In support of such fact, the learned Authorized Representative has placed sample copies of rewarehousing certificate of other units. Further, the learned Authorized Representative for the Revenue brought to our notice the Circular dt.26.6.2001, where under at Para 3(b), it is categorically mentioned that in absence of receipt of rewarehousing certificate, duty should be recovered from the consignor as held in the case of Carrier Aircon Ltd Vs CCE, New Delhi III 2002 (144) ELT 170 (Ti-Del).
5. We have carefully considered the submissions made by the learned Authorized Representative for the Revenue. We find that the learned Commissioner has not examined the issue in the light of the evidences inasmuch and the reports from the respective Commissioners of Central Excise office under whose jurisdiction, the consignees factory is situated through his letter dt.13.09.2004, categorically stated that no evidence was available on record showing receipt of any material from the respondent, at the premises of consignee against AR3A Nos.93 to 101 but the goods were belonging to some other parties. The learned Commissioner (Appeals) has not examined all these evidences before coming to any conclusion that mere countersignature in the AR3 by the range superintendent is sufficient evidence of receipt of goods at the consignees end. Therefore, we are not satisfied with the evidences placed before the learned Commissioner (Appeals) by the respondent about delivery/receipt of the impugned goods at the consignees factory. In the result, in view of the decision in the case of Carrier Aircon Ltd Vs CCE, New Delhi-III 2002 (144) ELT 170 (Tri-Del), duty is recoverable from the respondent.
6. In the circumstances, the impugned order is set aside and appeal filed by the Revenue is allowed.
(Dictated and pronounced in the open court)
(P.M. Saleem) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
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