Custom, Excise & Service Tax Tribunal
Cce, Coimbatore vs M/S. Coimbatore Popular Spinning Mills ... on 4 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/383/2007
(Arising out of Order-in-Appeal No. 18/2007-CEX dated 13.3.2007 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
For approval and signature:
Honble Ms. Jyoti Balasundaram, Vice-President
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Member wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Coimbatore Appellant
Vs.
M/s. Coimbatore Popular Spinning Mills Ltd. Respondent
Appearance Shri T.H. Rao, SDR for the Appellant Shri M. Karthikeyan, Consultant for the Respondent CORAM Honble Ms. Jyoti Balasundaram, Vice-President Date of Hearing: 04.06.2010 Date of Decision: 04.06.2010 Final Order No. ____________ The brief facts of the case are that the respondents herein were registered with the Central Excise authorities and engaged in the manufacture of cotton yarn and were removing the excisable goods for the purpose of export without payment of duty either in their own name or in the name of merchant exporter. They cleared a certain quantity of 100% cotton yarn vide AR4 returns to one of the merchant exporter M/s. Preeti Tex for export to Bangladesh without payment of duty and also received payment from the Preethi Tex, Coimbatore. Investigation, however, revealed that the consignment had not been exported to Bangladesh and that the documents produced by the assessees before the jurisdictional Assistant Commissioner to obtain proof of export admittance certificate was a false one, prepared in connivance with the merchant exporter, with an intention to evade payment of duty on the said goods. On this basis, show-cause notice dated 7.l0.2005 was issued for recovery of duty along with interest and also proposing penal action against the assessees. The notice was adjudicated by confirmation of the demand and imposition of penalty; both were set aside by the Commissioner (Appeals); hence this appeal by the Revenue.
2. I have heard both sides. I find that in an identical case before the Tribunal in the case of CCE, Coimbatore Vs. M/s. Preethi Tex and Other vide Final Order No. 1368 and 1369/2009 dated 18.9.2009, the Bench held as under:-
2. I have heard both sides. The show-cause notice alleges that the assessee produced false documents to get proof of export admittance certificate from the erstwhile jurisdictional Assistant Commissioner of Central Excise, Erode and that the manufacturer, with the connivance of the merchant exporter diverted the goods for home consumption and did not export the goods to Bangladesh. The adjudicating authority relied upon the letter addressed by the Commissioner of Central Excise, Coimbatore that the Directorate General of Vigilance, East Zonal Unit, Calcutta had informed that the proof of export submitted by the exporter was fake and that the subject export of consignment did not take place at all. He therefore confirmed the demand and imposed penalty. However, when the appeals were preferred before the lower appellate authority, the held that the proof of export had been accepted by the jurisdictional Central Excise authorities but on the other hand, reliance has been placed on the letter of the Director General of Vigilance, Calcutta which was not supplied/furnished to the merchant exporter or manufacturer. The argument raised before me is that dehors the letter of DGV, Calcutta, AR-4 produced by the respondents and shipping bill under the DEPB scheme, would not constitute proof of export, and therefore is not relevant for clearances under export for Bangladesh. However, this is a new ground which is put forth at the Bar which is not the ground on which show cause notice was issued or adjudication order was passed. The entire case of the Revenue is that fake documents were produced before the jurisdictional Assistant Commissioner in order to obtain proof of export admittance certificate. There is nothing on record to establish that the documents produced by the respondents for the purpose of obtaining proof of export admittance certificate were fake or bogus. Therefore, the case of the department fails. The impugned order is upheld and the appeals dismissed.
3. The above decision is applicable on all fours to the facts of the present case and hence following the same, I dismiss the appeal after upholding the impugned order.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) Vice-President Rex ??
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