Jharkhand High Court
Tata Steel Limited vs Union Of India & Ors on 25 February, 2015
Author: D. N. Patel
Bench: D.N. Patel, Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (T) No. 6522 of 2011
Tata Steel Limited ..... ..... Petitioner
Versus
Union of India & Ors. ..... .... Respondents
---------
CORAM: HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE PRAMATH PATNAIK
----------
For the Appellant : M/s.Dr. Samir Chakraborty & Sumeet Gadodia, Adv.
For the Respondents : Mr. Ratnesh Kumar
-----------
19/Dated:25.02.2015
Per D. N. Patel, J.:
1. Learned counsel appearing for the petitioner vehemently submitted:
• That petitioner, which is manufacturing items to be exported at Jamshedpur. The items exported are hot roll coil, billet, wire rods, bars and channels on the permissible destinations, without payment of duty under Bond under Rule 13 of Central Excise Rules, 1944. • That Under Rule 12 of Central Excise Rules, 1944, there are two methods of exports. One is to make payment of the duty and after export prefer application for refund, which may be cumbersome for the manufacturer and second method allowed under the said Rule 12 is, clearance of excisable goods as per Rule 13 of the Central Excise Rules, 1944.
• That the goods can be cleared from the place of manufacture or from the ware house or such other places permitted by the officers of the respondent upon execution of a bond. The goods can be exported within a period of six months and subject to various conditions. • That the export involved in this matter is for the period running from December, 1992 to January, 1995.
• That Rule 13 has been amended with effect from 01st October, 1994. • That the procedure for export about AR IV Forms has been pointed out in a notification no.48 of 1994 dated 22nd September, 1994. • That after export of the goods which are necessary procedure, has to be followed and the required endorsement are to be taken and those forms are to be handed over to Superintendent of Excise and Customs 2 or it can be handed over to Maritime Commissioner/Collector at the Port.
• That the goods in question have been exported from Kolkata, Haldia Doc System (HDS).
• That the submissions of the proof of export was left by this petitioner before Maritime Commissioner/Collector, Kolkata Port and subsequently, it was his duty to send these original papers in duplicate, triplicate alongwith original to the Superintendent of Central Excise, Jamshedpur from where the goods were cleared without payment of the duty.
• That as the Superintendent of Central Excise, Jamshedpur has not received the proof of export (which was submitted by this exporter- petitioner at Maritime Commissioner/Collector at Kolkata port), show cause notice dated 13th February, 1995 was issued for approximately Rs. 9.45 Crores.
• That the show cause notice was replied and ultimately order in original was passed on 31st August, 2006 by Additional Commissioner of Central Excise. The said order is Annexure 7, in which the claim of this petitioner-exporter for rupees approximately 7.25 crores has been accepted whereas Additional Commissioner of Central Excise has not granted relief for rupees of the amount i.e. approximately 2.20 crores. • That as this amount of Rs.2.20 crores has now to pay, rupees 50 lakhs which is already with the department paid by the petitioner has been adjusted and for remaining amount still the demand is pending by the department from this petitioner, for which appeal has been preferred before Commissioner (Appeals). While admitting the appeal conditional order was passed for further depositing Rs.50 lakhs and said amount has already been paid on 13th January, 2009. • That Commissioner (Appeals) remanded the matter to the Additional Commissioner, Central Excise, Jamshedpur on the ground of limitation and on other grounds.
• That the said order is passed by the Commissioner (Appeals) suo- motu, against which, revision under Section 35 EE of the Central Excise Act, 1944 was preferred by the Commissioner of Central Excise, Jamshedpur.3
• That a revisional order has been passed against this petitioner-exporter mainly on the basis of circular bearing No.87/87/94 dated 26th December, 1994 (which is at Annexure A to the counter affidavit filed by the respondent authorities.) This order is dated 21st September, 2011 (Annexure 13 to the memo of this writ petition, which is under challenge) and consequently notice to make payment of rest of the amount has also been issued on 03rd October, 2011 (Annexure 14), which is also under challenge.
• That the proof of export with the proper verification and endorsement was handed over to Maritime Commissioner/Collector at Kolkata Port and it was his duty to send the proof of export to Central Excise authority at Jamshedpur so that this petitioner-exporter has not to pay the excise duty, as per prevailing rates at the relevant time in question. This proof was sent by Maritime Commissioner/Collector to the Central Excise Officer at Jamshedpur. Despite this evidence with the department, they have wrongly issued a show cause dated 13th February, 1995 and consequently thereto the annexures 13 and 14 have been passed.
• That the Circular No.87/87/94 dated 26th December, 1994, upon which, the revisional authority has placed reliance while passing the order dated 21st September, 2011 (Annexure-13) is not applicable to the facts of the present case because the export in question is from December, 1992 to January 1995. Thus, most of the export is not covered by the said circular. Nonetheless, the counsel appearing for the petitioner is seeking time to give any other proof, for export of the goods like consideration, received from the purchaser of the excisable goods:
(a) The proof, if any, like consideration received from the purchaser of the goods from foreign country.
(b) Money received from the purchaser shown in the balance sheet of the relevant years, trading account or receipts; or
(c) such other evidences of the confirmed export.
• That as per CBEC's Supplementary Instructions 2005, it has been stated in Clause No.13.7 as under:
" In case of any loss of document, the Divisional Officer or the bond accepting authority may get the 4 matter verified from the Customs authorities at the place of export or may call for collateral evidences such as remittance certificate, Mate's receipt etc. to satisfy himself that the goods have actually been exported."
Similar powers could have been exercised before issuing show cause notice dated 13th February, 2005.
2. Learned counsel appearing for the petitioner is seeking time to get further instructions.
3. Hence, the matter is adjourned on 20th April, 2015.
(D.N. Patel, J.) (Pramath Patnaik, J.) RKM/Saket/