2008 (5) TMI 593 - AT - Central Excise

Summary

Issues:
Prayer to dispense with pre-deposit of duty amount confirmed against the appellant. Imposition of personal penalty for non-export despite issuing ARE-1.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Ahmedabad, involved a case where the appellant sought to dispense with the pre-deposit of duty amount of Rs. 7,96,207/- confirmed against them, along with a personal penalty imposed for non-export despite issuing ARE-1. The impugned order was passed by the Commissioner in de novo proceedings after the matter was remanded by the Tribunal. The appellant's argument was that although two ARE-1 forms were issued, they were later canceled, and no clearances occurred due to the cancellation of the export order. The appellant contended that the lack of clearances could be proven through their export register entries and collateral documentary evidence, which were seized by the department but not provided to them for defense. The appellant relied on a Tribunal decision in a similar case to support their argument that duty liability cannot be imposed if documents seized by the department are not supplied to the assessee for defense.

The Tribunal, after hearing both sides, acknowledged that the appellant's claim regarding the non-clearance against the disputed ARE-1 forms could be verified from the statutory records maintained by the appellant in the ordinary course of business. However, these records were seized by the department and not supplied to the appellant despite requests, as they were reported to be misplaced and unavailable. The Tribunal held that since the misplacement of documents occurred at the Revenue's end, the appellant could not be held responsible for it and should not be subjected to duty liability. Consequently, the Tribunal found that the appellant had a prima facie case in their favor and ordered the stay petition to be allowed unconditionally.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Ahmedabad, granted relief to the appellant by allowing the stay petition unconditionally, considering the circumstances surrounding the cancellation of export orders and the unavailability of seized documents crucial for the defense of the appellant. The decision highlighted the importance of providing access to relevant documents to the assessee for a fair adjudication process.