2017 (3) TMI 61 - AT - Central Excise

Who is liable to pay duty - Goods allegedly diverted in the local market in the guise of export - Bond executed by the non-existent merchant exporter - Penalty - During the course of investigation undertaken by DGCEI, it has emerged that the consignment of Cigarettes cleared for exports were never exported - Held that - during the course of investigation it has emerged that merchant exporters were found to be non-existent, at the addresses submitted by them to the department. In such circumstances, it has to be presumed that no such merchant exporters existed at their declared addresses and the bonds executed by such merchant exporters have ceased legality to be a valid document. In the absence of valid bond from the merchant exporters, the liability for payment of excise duty reverses back to the original manufacturer who manufactured the goods i.e. the respondent in the present case. Manufacturer is required to pay Demand of duty with interest and penalty.

Issues:
- Demand of excise duty on goods allegedly diverted in the local market in the guise of export.
- Liability for payment of excise duty on goods cleared for export but never actually exported.
- Validity and responsibility regarding bonds executed by merchant exporters for duty-free clearance.
- Payment received by the manufacturer from non-existent entities for the exported goods.

Analysis:

Issue 1: Demand of excise duty on goods allegedly diverted in the local market in the guise of export.
The case involved an appeal by the Revenue against the dropping of the demand of excise duty and penalties by the Commissioner on the respondent, a cigarette manufacturer. The investigation revealed diversion of goods cleared for export duty free into the local market with fake proof. The Commissioner had initially dropped the demand, but the Revenue contended that the duty should be confirmed on the respondent.

Issue 2: Liability for payment of excise duty on goods cleared for export but never actually exported.
The investigation found that consignments cleared for export were never exported, and the proof of export submitted was fraudulent. The merchant exporters involved were non-existent at the declared addresses. The question arose as to who was liable to pay the excise duty in such a scenario, with the manufacturer and the merchant exporters both being considered.

Issue 3: Validity and responsibility regarding bonds executed by merchant exporters for duty-free clearance.
The procedure for duty-free clearance through merchant exporters required them to execute bonds and pay excise duty, being discharged upon proof of export. However, in this case, the merchant exporters failed to provide genuine proof, and their non-existence raised questions about the validity of the bonds. The liability for excise duty was debated, with the manufacturer and the merchant exporters being evaluated for responsibility.

Issue 4: Payment received by the manufacturer from non-existent entities for the exported goods.
The respondent had received payments for the consignments allegedly cleared for export, but investigations revealed that the entities making payments were non-existent. Demand drafts were found to be made in the names of non-existent persons at bogus addresses. The lack of inquiry by the respondent regarding these payments raised doubts about their intentions.

The Tribunal modified the impugned order, upholding the demand of excise duty on the respondent, along with interest and penalties. The liability for payment was shifted back to the manufacturer due to the non-existence of the merchant exporters and the fraudulent nature of the export transactions. The decision highlighted the importance of genuine export transactions and the responsibility of all parties involved in the export process.

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