2017 (8) TMI 901 - AT - Central Excise

N/N. 43/2001-CE (NT) - leather shoe uppers falling under Heading 6406 1020 - demand on the ground that the same were cleared for home consumption and not for export - Held that - the appellants were not aware that they are liable to pay duty, there is no valid defense put forward by the appellants. But taking into consideration that the goods have been entirely exported, we are of the view that the penalties imposed under section 11AC is unwarranted - demand of duty with interest upheld - appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Duty demand on exported leather shoe uppers
2. Applicability of Notification No. 43/2001-CE (NT)
3. Registration with Central Excise Department
4. Intention to evade duty
5. Penalty under section 11AC of Central Excise Act

Analysis:

1. Duty demand on exported leather shoe uppers:
The appellant, engaged in manufacturing leather shoe uppers for export, faced a duty demand of &8377; 10,32,466/- for supplying 70,840 pairs of uppers to another exporter. The original authority confirmed a demand of &8377; 8,87,601/-, citing non-registration with the Central Excise Department and clearance for home consumption. The Commissioner (Appeals) upheld the decision, leading to the appeal before the Tribunal.

2. Applicability of Notification No. 43/2001-CE (NT):
The appellant argued that they and the recipient exporter were unaware of the procedures under Notification No. 43/2001-CE (NT) allowing duty-free clearance for export-oriented goods. They contended that since the uppers were used for export-bound shoes, procedural lapses should be overlooked upon compliance with the export condition. The appellant maintained that they promptly paid duty under protest upon notification, emphasizing their belief in duty exemption due to the intended export.

3. Registration with Central Excise Department:
Both the appellant and the recipient were unregistered with the Central Excise Department, which the department highlighted as a factor in determining the duty demand. The appellant's lack of registration was considered in calculating the duty, with the SSI exemption of Rs. One crore granted under the assumption of home consumption.

4. Intention to evade duty:
The appellant asserted their lack of intent to evade duty, emphasizing their belief in duty exemption due to the export-oriented nature of the transaction. They presented export documents and affidavits from the recipient to demonstrate compliance with the export condition, arguing that immediate duty payment upon notification further indicated their good faith.

5. Penalty under section 11AC of Central Excise Act:
While acknowledging the procedural lapses and lack of a strong defense, the Tribunal found the penalty under section 11AC unwarranted due to the complete export of goods. The penalty was set aside, maintaining the duty demand and interest, providing relief to the appellant without disturbing the financial obligations related to the duty demand.

In conclusion, the Tribunal partially allowed the appeal by setting aside the penalty under section 11AC while upholding the duty demand and interest, considering the complete export of the goods as a mitigating factor in the penalty imposition.