2018 (1) TMI 464 - AT - Central Excise

100% EOU - Refund claim - it was alleged that there was difference in quantity between Bill of entry and physical receipt - Held that - whatever goods were cleared from the bonded warehouse Kandla, same quantity was received by the respondent therefore there is no short receipt of the goods or diversion thereof - there is no dispute on the basis of documents that there is no short receipt of the quantity which physically cleared from the bonded warehouse Kandla - appeal dismissed - decided against Revenue.

Issues:
1. Discrepancy in quantity between Bill of Entry and physical receipt from bonded warehouse.
2. Duty liability on shortages pointed out by jurisdictional officers.
3. Rejection of refund claim by adjudicating authority.
4. Appeal by Revenue against Order-in-Appeal allowing respondent's appeal.
5. Arguments presented by both parties regarding the quantity received and duty liability.
6. Consideration of documents by the Commissioner (Appeals) to determine short receipt of goods.
7. Decision upholding the appeal of the respondent and dismissing Revenue's appeal.

Analysis:
1. The appeal was filed by the Revenue against the Order-in-Appeal where the Ld. Commissioner allowed the respondent's appeal regarding the clearance of goods from a bonded warehouse at Kandla. The discrepancy arose as the physical quantity cleared was less than the quantity mentioned in the Bill of Entry, leading to jurisdictional officers raising objections.

2. The appellant, a 100% EOU, discharged duty liability on the shortages identified by the officers, following which a refund claim was filed. However, the adjudicating authority rejected the refund claim, stating that the duty paid was correct due to the short receipt of quantity by the appellant.

3. The Revenue argued that the quantity mentioned in the Bill of Entry was not received by the appellant, making them liable to pay custom duty for the shortfall. Conversely, the respondent contended that the actual quantity cleared from the bonded warehouse matched the quantity received, supported by documents like gate passes, weighment slips, and transport LR.

4. The Ld. Commissioner (Appeals) examined the documents presented by the respondent's consultant, establishing that the goods cleared and received were of the same quantity. The Commissioner concluded that there was no short receipt of goods under the procurement certificate and upheld the respondent's appeal, leading to the dismissal of the Revenue's appeal.

5. The Commissioner's decision was based on a thorough review of evidence, including transporter's receipts, weighbridge reports, and surveyor's reports, which confirmed that the quantity physically cleared from the bonded warehouse aligned with the quantity received by the respondent. The Commissioner's detailed analysis supported the dismissal of the Revenue's appeal and the affirmation of the respondent's appeal.

6. The judgment emphasized the importance of documentary evidence in determining the accuracy of goods received from bonded warehouses, highlighting the significance of documents like transport receipts and weighbridge reports in verifying the quantity cleared and received. The decision ultimately favored the respondent due to the lack of evidence supporting any short receipt of goods, leading to the dismissal of the Revenue's appeal.

7. In conclusion, the judgment upheld the appeal of the respondent, emphasizing the meticulous consideration of documents and evidence by the Commissioner (Appeals) to establish the absence of any discrepancy in the quantity of goods received. The Revenue's appeal was consequently dismissed, and the case was disposed of in favor of the respondent.

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