2010 (9) TMI 282 - AT - Central Excise

Duty liability - goods not exported by the merchant exporters but diverted in the local market - merchant exporter has executed the export bonds thereby binding themselves to pay the duty due on the goods if not exported within 6 months - merchant exporters failed to submit proof of export Held that - merchant exporters failed to discharge the duty liability the same shall be recovered from the manufacturer as they have acted surety in the bonds - failure to pay duty by the merchant manufacturers the respondents would be liable to pay duty - appeals are accordingly rejected

Summary

Issues:
- Disposal of appeals by Revenue against the order of Commissioner (Appeals)
- Liability of M/s. Shagun Processors for payment of central excise duty
- Confirmation of duty demands against merchant exporters and manufacturers
- Observations and decisions of the Commissioner (Appeals)
- Grounds of appeal raised by the Revenue
- Contradictory views on liability and duty payment

Issue 1: Disposal of appeals by Revenue against the order of Commissioner (Appeals)

The judgment involves the disposal of multiple appeals filed by the Revenue against a common order of the Commissioner (Appeals). The Tribunal consolidated these appeals into a single order for adjudication. The appeals were related to the confirmation of demands of duties against merchant exporters and manufacturers.

Issue 2: Liability of M/s. Shagun Processors for payment of central excise duty

M/s. Shagun Processors acted as surety on behalf of merchant exporters for goods cleared for export but not actually exported. The original adjudicating authority held M/s. Shagun Processors liable to pay central excise duty if the exporters failed to do so. Penalties were also imposed on M/s. Shagun Processors for their role as surety.

Issue 3: Confirmation of duty demands against merchant exporters and manufacturers

The Commissioner (Appeals) observed that in cases where merchant exporters failed to pay the duty demanded for goods not exported, M/s. Shagun Processors, as surety, would be liable to discharge the duty obligation and pay the duty. The Tribunal dismissed the Revenue's appeal against this decision as being barred by limitation.

Issue 4: Observations and decisions of the Commissioner (Appeals)

The Commissioner (Appeals) set aside penalties imposed on M/s. Shagun Processors but held them liable to pay duty as surety for the merchant exporters. The Commissioner's decision was based on the obligation of suretyship undertaken by M/s. Shagun Processors for the merchant exporters.

Issue 5: Grounds of appeal raised by the Revenue

The Revenue appealed against the Commissioner (Appeals) order, arguing that M/s. Shagun Processors should be held liable for payment of duty, interest, and penalties due to the failure of the exporter to fulfill their obligation. The Revenue contended that the duty should be demanded from M/s. Shagun Processors as they acted as surety.

Issue 6: Contradictory views on liability and duty payment

The Tribunal found no merit in the Revenue's appeal, stating that the duty demand cannot be confirmed against both the merchant exporters and M/s. Shagun Processors for the same transactions. The Commissioner (Appeals) had already held that in case of the exporter's failure to pay duty, M/s. Shagun Processors would be liable to pay. Therefore, no separate confirmation of duty demand against M/s. Shagun Processors was necessary, as their liability as surety was established.

In conclusion, the Tribunal rejected the Revenue's appeals, upholding the Commissioner (Appeals) decision regarding the liability of M/s. Shagun Processors for payment of central excise duty as surety for the merchant exporters.