2012 (8) TMI 572 - AT - Central Excise

Failure to furnish the re-warehousing certificate within stipulated period of 90 days in terms of Rule 173 of Central Excise Rules, 1944 - 100% EOU - goods cleared without payment of duty - demand of duty and penalty imposed - assessee contended furnishing copy of letter issued by the consignor M/s.FACOR in lieu of certificate - Held that - Commissioner(Appeals) has rightly observed that AR-3A duly countersigned by the officer in charge of the warehouse at destination only being the authentic document as prescribed in the statute, the certificate of the consignee produced by the appellant will be of no avail. Also, appellant could not produce anything contrary or new to the above. balance of duty confirmed, however, taking into consideration all the facts and circumstances of the case, penalty imposed under Rule 173Q is set aside.

Summary

Issues:
- Appeal against Commissioner(Appeals) order upholding lower adjudicating authority's decision
- Failure to produce re-warehousing certificate within stipulated period
- Demand of duty and penalty imposed under Rule 173Q of Central Excise Rules, 1944
- Contention regarding lost AR-3A documents and plea of no mala fide intention
- Consideration of rewarehousing certificate requirement and absence of such certificate
- Modification of penalty imposed under Rule 173Q

Analysis:
The appeal was filed against the Commissioner(Appeals) order that upheld the decision of the lower adjudicating authority. The case involved the appellant's failure to produce a re-warehousing certificate within the specified 90-day period, as required by Rule 173 of the Central Excise Rules, 1944. The lower adjudicating authority confirmed the demand of duty amounting to Rs.1,65,307 and imposed a penalty of Rs.50,000 under Rule 173Q for the quantity cleared without payment of duty. The appellant contended that the consignor's letter from M/s.FACOR, which was lost, and the receipt of goods by the customer, a 100% EOU, should suffice. However, the absence of an endorsement by a Central Excise officer on the letter was noted. The appellant argued against the imposition of a penalty based on the absence of mala fide intent.

The Tribunal considered the appellant's arguments and the findings of the Commissioner(Appeals). It was observed that the appellant had removed goods to a 100% EOU based on CT-3 without payment of duty, but the rewarehousing certificate from the consignee end, as required by Rule 173N and Rule 156A, was not furnished within the stipulated period. The absence of this certificate rendered the consignee's certificate produced by the appellant irrelevant. The Tribunal upheld the duty demand confirmed by the lower authority as legal and proper due to the non-compliance with the rewarehousing certificate requirement.

Despite the above, the Tribunal, considering all facts and circumstances, decided to set aside the penalty of Rs.50,000 imposed under Rule 173Q. The Order-in-Appeal was modified to that extent, and the appeal was allowed in part. The decision was pronounced and dictated in the open court.