Custom, Excise & Service Tax Tribunal
Heranba Industries Ltd vs C.C.E.Cus.& St, Daman on 4 May, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, O-20, NMH Compound Ahmedabad Customs Appeal No.356, 357 of 2009-SM Arising out of the Order-in-Original No.3/MP/DAMAN/2009 dated 30.6.2009 passed by the Commissioner, Central Excise Customs & Service Tax ,Daman. Heranba Industries Ltd .. Appellants Anantha Krishnan Vs. C.C.E.Cus.& ST, Daman .. Respondent
Appearance:
Present Shri Anil Gidwani, Consultant for the appellants Present Shri A. Mishra, A.R. for the Respondent-Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing/decision: 4.5.2017 Final Order No.A/10915 10916/2017 Per Dr. D.M. Misra:
Heard both sides. These appeals are filed against the Order-in-Original No.3/MP/DAMAN/2009 dated 30.6.2009 passed by the Commissioner, Central Excise Customs & Service Tax Daman.
2. Briefly stated the facts of the case are that the appellants are 100% EOU engaged in the manufacture of Agro Chemicals. The appellants had imported 18000 kgs of Meta Phenoxy Benzaldehyde valued at Rs.43,49,474/- from one M/s Portfourtune Industrial Limited, Hong Kong, China and filed in-bond Bill of Entry No.895589 dated 31.8.2007. Later, on physical examination of the imported goods by the warehousing officer, it was noticed that the goods were of Indian origin and not Chinese origin, as declared by the appellants. Subsequently, the goods were seized and later released provisionally on execution of Bond and Bank Guarantee. After completion of the necessary investigation, show cause notice was issued to the appellants on 11.3.2008 proposing confiscation of the goods and recovery of Customs duty of Rs.13,48,832/- with proposal for penalty. On adjudication, the duty demand with interest was confirmed, penalty of equal amount imposed and the goods were confiscated with an option to redeem the same on payment of fine of Rs.30,00,642/-; also personal penalty of Rs.13,48,832/- was imposed on shri Anantha Krishnan. Hence, the present appeals.
2. Ld. Consultant for the appellants submits that the imported consignment was wrongly dispatched by the overseas supplier, a fact which was later admitted by the said supplier and they agreed to take back the goods from India at their own cost. It is his contention that till the goods were examined by the warehousing officer even the appellant was not aware of the fact that the imported goods namely, Meta Phenoxy Benzaldehyde was of Indian origin and not of Chinese origin. It is his contention that on the basis of their request and acceptance of the mistake in sending the goods to the appellant by the overseas supplier, the Commissioner of Customs, Customs & Service Tax was pleased to allow re-export of the said goods. Ld. Consultant submits that the goods were exported against shipping Bill No.6045064 dated 18.2.2008 and the ship was sailed on 23.2.2008. He submits that even though this fact was specifically brought to the notice of the adjudicating authority in their reply to the show cause notice by enclosing all the export documents, however, erroneously, the ld. Commissioner recorded a finding on the basis of a letter dated 23.6.2009 of the jurisdictional officer that no permission for re-export of the goods was granted to the appellants. It is his contention that since the Department has allowed re-export of the goods and the same were exported , therefore, in view of the judgment in the cases of Guru Ispat Ltd. vs. C.C. (Port), Calcutta 2003 (151) ELT 384 (Tri-Kolkata); Regal Impex vs. C.C. ICD, TKD, New Delhi 2016 (332) ELT 835 (Tri-Del.); Siemens Limited vs. C.C. 1999 (113) ELT 776 (SC) wherein it has been held that that once the goods were allowed to be exported which were earlier imported due to the mistake of the overseas supplier, penalty and confiscation are unwarranted.
4. Ld. A.R. for the Revenue was directed to verify as to whether the appellants claim of re-export of goods on 28.3.2008 is correct or otherwise. The Ld. A.R. has placed a letter dated 31.3.2017 addressed by the Additional Commissioner of Central Excise, Customs and Service Tax, Valsad informing that the goods were exported against shipping Bill No.6045064 dated 18.2.2008.
5. Heard both sides and perused records. It is not in dispute that the appellants had imported 18000 kgs. of Meta Phenoxy Benzaldehyde of Indian origin declaring the same as of Chinese origin. It is also not in dispute that the appellant was not of aware of the fact that the goods supplied by the overseas supplier was of Indian origin and not of Chinese origin. Later, realizing the mistake, the overseas supplier agreed to take back the material and on the request of the appellant, the ld. commissioner of Customs allowed export of the said goods which in fact was exported on 23.2.2008 against Shipping Bill No.6045064 dated 18.2.2008. The Revenue has confirmed the said export of the goods. The finding of the ld. Commissioner of Customs that no permission for export of the said goods was accorded to the appellant, is thus incorrect and therefore, the conclusion reached by the ld. Commissioner also becomes erroneous.
6. In the result, in view of the principle laid down in the judgments referred to by the ld. Advocate mentioned above, I do not find merit in the impugned order. Accordingly the same is set aside and the appeals are allowed with consequential relief, if any, as per law.
(Dr. D.M. Misra) Member (Judicial) scd/ C/356, 357/2009-SM 1