2010 (1) TMI 1152 - CGOVT - Central Excise

Issues Involved:
1. Proof of export and submission of AR-4 forms.
2. Liability to pay Central Excise Duty.
3. Application of the doctrine of res judicata.
4. Adherence to procedural requirements.
5. Rectification of mistake application.

Detailed Analysis:

Proof of Export and Submission of AR-4 Forms:
The primary issue is whether the clearances of goods for export were established. The Commissioner (Appeals) dismissed the departmental appeal, noting that the matter for the same period and amount had already been decided by the Joint Secretary in a revision order. The department contended that the clearances were not established as no copies of the application and AR-4 forms were filed with the Range Office. The Triplicate copies of AR-4 were not signed by the Range Officer, and no Central Excise invoices were submitted for verification of export. The Commissioner (Appeals) failed to consider these grounds.

Liability to Pay Central Excise Duty:
The department argued that the liability to pay duty on goods cleared for export but not exported lies with the manufacturer. The Commissioner (Appeals) had earlier ruled that the duty liability, if any, is on the Merchant Exporter, not the manufacturer. The department cited the Bombay Dyeing case, where the Revisionary Authority remanded the matter to ascertain proof of export from the bond-accepting authority. The department maintained that the manufacturer is responsible for submitting proof of export, as they approach the Assistant Commissioner for clearance of goods for exports under the bond executed by the Merchant Exporter.

Application of the Doctrine of Res Judicata:
The respondent argued that the present revision application is an attempt to re-adjudicate issues already decided between the same parties. The doctrine of res judicata precludes the department from reopening the same issue. The respondent cited the Supreme Court judgments, including Commissioner of Central Excise, New Delhi v. India Thermit Corporation Ltd., which states that no two proceedings on the same issue are permissible. The earlier adjudications on the same issue for part of the period had been accepted, and the department cannot re-agitate the same point for the remaining period.

Adherence to Procedural Requirements:
The respondent contended that the Commissioner (Appeals) had already decided the issue in accordance with the law and based his findings on the Circular of the Board and decisions of the Tribunal. The order of the Commissioner (Appeals) could not be faulted for not examining the facts and merits of the case. The department's rectification of mistake application was not maintainable as there is no provision under Section 35EE of the Central Excise Act, 1944, for rectification of mistakes by the Revisionary Authority.

Rectification of Mistake Application:
The department filed an application for rectification of mistake against the order dated 28-4-2006. The respondent argued that the provisions for rectification of mistakes apply only to orders passed by the Appellate Tribunal under Section 35C of the Act, not to orders passed by the Revisionary Authority under Section 35EE of the Act. The Government observed that there is no provision in Section 35EE for rectification of mistakes by the Revisionary Authority. The application for rectification of mistake was deemed not maintainable.

Conclusion:
The Government considered both oral and written submissions and perused the orders passed by the lower authorities. It was observed that the revisionary authority had already decided the case vide order No. 310/06, dated 28-4-06. In light of the Supreme Court judgment in CCE, New Delhi v. M/s. India Thermit Corporation, the department cannot re-agitate the same point. The application for rectification of mistake was not maintainable as there is no provision under Section 35EE for such applications. The revision application was rejected as devoid of merit.

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