Custom, Excise & Service Tax Tribunal
M/S M.S. Shoes East Ltd vs Cce (Adj), New Delhi on 8 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Custom Misc Application No. 3525 of 2012 Custom Appeal No. 214-220, 241, 534-535 of 2005 [Arising out of Order-In-Appeal No CCE(ADJ)/70-71/2004 dated 27.10.2004, and CCE(ADJ)/64-65, 66-67,68-69/2004 dated 5.11.2004 and CCE(ADJ)16-17/2004 dated 31.2.2005 all passed by Commissioner of Central Excise, New Delhi] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Manmohan Singh, Member (Technical) 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 Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? M/s M.S. Shoes East Ltd. Appellants Shri Pavan Sachdeva M/s M.S. International Ltd. N/s. M.S.Universal Exports Ltd. M/s Pearls Intercontinental Ltd. Vs. CCE (Adj), New Delhi Respondent
Appearance:
Mr. J.S. Sinha, Advocate for the Appellant Mr. I. Baig, AR for the Respondents CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing/decision : 08.05.2013 ORDER NO .FO/ 56419-56428/2013-Cus(Br) Per Archana Wadhwa (for the Bench):
All 10 cases are being disposed of by a common order as the issue involved in all of them is identical. 5 appeals are by the manufacturing units and 5 appeals are by the Directors of said manufacturing units.
2. After hearing both sides, we find that the manufacturing units imported raw material without payment of duty in terms of notification No. 203/92. The said duty free imported raw material was required to be used in the manufacture of final products which were required to be exported.
3. The entire dispute in the present appeals relates to the fact as to whether the actual exports have been undertaken by the manufacturing units or not. The lower authorities, by taking note of the fact that redemption letters as also the bank realization certificates have not been produced by the appellants, concluded that there is no proof of actual exports of the goods and accordingly, confirmed the demands and imposed penalties.
4. It is seen that during the pendency of the appeal before Tribunal, the appellants have filed the Misc. application for producing the additional evidence on record. Which was subsequently obtained by them. The said evidence was in the nature of redemption certificates issued by DGFT and bank realization certificates and the related correspondence etc. The said additional evidence was allowed by the Tribunal vide its Misc. order No. C/133-139/09 dated 5.11.09. The appellants have filed now another Misc. application for production of redemption certificates issued by DGFT in the case of M/s. M.S.Universal Exports Ltd. Their contention is that said certificates were not the subject matter of the earlier Misc. order vide which identical documents relating to other appellants were allowed to be placed on record.
5. We agree that inasmuch as the earlier Misc. order No. C/131-139/09 dated 5.11.09 has allowed the appellants to produce on record the redemption issued by DGFT and letters discharging LTU given by the applicant and the other export relating documents, we allow the present Misc. application filed by M/s. M.S.Universal Exports Ltd.
6. We further note that the sole dispute in the present appeal is as regards the production of documents reflecting upon the fact of exports. The appellants, subsequent to adjudication, has placed various evidence on record indicating that exports has actually taken place. Revenue was given time to get the documents verified from the DRI. The Deputy Director, DRI vide its letter dated 29.4.2013 addressed to the Departmental Representative has stated that in some of the cases documents have been verified and found to be correct. However, in some of the cases, the same are in the process of scrutiny and in some cases the documents are not available with them. As such, the prayer stand made in the said letter that as all the documents filed by the appellants in their appeals need to be verified, the matter may be remanded to the adjudicating authority for the said purpose.
7. Countering the above prayer of remand, learned advocate Shri J. S. Singh submits wherever the documents have been verified by DRI and a report to that effect has been given, the Tribunal may drop the demand. In the rest of the cases, where the appellants have not been able to produce the relevant documents, he accepts that demands are required to be confirmed. He also submits that duty in respect of said cases were deposited by them during investigation itself.
8. As regards the penalty, learned advocate submits that penalty is not imposable inasmuch as in three of the cases, he has been able to produce the evidence of export and in the balance two cases, the export could not be made as the time for export was not extended by the DGFT at the instance of DRI as they were writing letters for not extending the period. It is the contention that if the period has been extended by the DGFT, the appellants would have been able to export. He further submits that the raw materials imported by them was lying with bankers and there is correspondence on record to show that permission were being sought for auction of the said material which was ultimately auctioned. As such, the revenues finding that the said material was diverted for sale into local market cannot be upheld. He also assails the confirmation of interest on the ground that duty was deposited much prior to the adjudication and as such, interest liability would not arise.
9. As we are of the view that documents placed before the Tribunal subsequent to the adjudication, though verified by DRI, are required to be examined by the adjudicating authority in respect of different exports.
Inasmuch as the factual verification and connection of the same with the export under dispute is required, we deem it fit to set aside the impugned orders and remand the matters to the original adjudicating authority for examining the veracity of the said documents.. While doing so, he will take into consideration the report of the DRI stating that the said documents stand examined and verified by them and found to be correct. Wherever there is no such report by DRI, the Commissioner would get the documents verified with the assistance of DRI.
10. As regards the interest, the appellants liability would be determined by the adjudicating authority in accordance with the law. Similarly, in respect of penalty, the appellants are at liberty to raise the above submission before the adjudicating authority during denovo proceedings and the adjudicating authority would decide the same accordingly in the light of submissions made by the appellants.
11. As the matter is quite old, we expect the Commissioner to do needful within a period of three months. It may be observed that the appellants would co-operate with the adjudicating authority in denovo proceedings and would not unnecessarily seek adjournment so as to delay the matter.
12. In view of the above, the Misc. application is allowed and all the appeals are allowed by way of remand.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Manmohan Singh ) Member(Technical)
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