Customs, Excise and Gold Tribunal - Mumbai
Dharamsi Morarji Chemical Industries vs Commissioner Of C. Ex. on 17 February, 2004
Equivalent citations: 2004(167)ELT154(TRI-MUMBAI)
ORDER K.D. Mankar, Member (T)
1. The instant appeal relates to demand of duty raised against the appellants with reference to the despatch of consignments initially received from their original customers on the grounds of being defective. In some cases the customers had refused to take delivery and returned the consignments due to lack of space. In these circumstances the appellants had to find new customers and divert the consignments to the subsequent customers after due intimation of receipt of goods in the factory or addressing the letter to the Range Superintendent about cancellation of the original invoice and issue of fresh invoice in favour of the new customer. It was specially stressed that/ on account of termination of facility of endorsement of invoices (GPls) after 1-4-94, there was no alternate procedure to cover this situation. The appellants have pleaded that, it is only on account of their representation to the Board, the Board have issued a Circular No. 113/24/95-Central Excise, dated 4-4-95 amending Circular No. 96/7/95-Central Excise, dated 13-2-95, to accommodate the situations as discussed above. Thereafter the problem does not exist.
2. Heard both sides.
3. I note that the lower authorities have confirmed the demand on the ground that there is a considerable time lag between the original clearance and the subsequent clearance to the new consignee. Besides, it is alleged that, the procedure under Rule 173H was not followed. It is, however, seen that, the appellants had intimated the receipt of the re-entered goods on each and every occasion. The subsequent invoice number is also indicated on each of the original cancelled invoice. Therefore, a strong contradictory evidence is required to allege that, the goods pertaining to the subsequent invoice were new goods which were required to pay duty and not the returned goods as claimed by the appellants. No such evidence having been brought on record, the duty demand cannot be sustained.
4. Accordingly the appeal succeeds and the same is allowed with consequential reliefs if any. The impugned orders are consequentially set aside.