2023 (9) TMI 1089 - AT - Central Excise

Clandestine Removal - quotations - export of goods - Jangad (approval). Quotation - HELD THAT - Firstly the appellant s representative have given statement which is exculpatory and have also explained that it is only quotation and no goods have been cleared under said quotation - From the perusal of quotation, it clearly shows that the aforesaid documents is only a quotation and does not indicate that any goods have been cleared under the quotation. Moreover, the appellant have not accepted the detail mentioning the above quotation as clandestine removal. The Revenue did not adduce any other evidence such as transportation of goods, buyer s statement etc., therefore, the demand on the basis of quotation is not sustainable. Demand of excise duty on the goods cleared for export - HELD THAT - There is no dispute about the physical export of the goods. The only reason for demand of duty is that the appellant have not followed the procedure - so far as the form-H was submitted by the appellant, it is sufficient compliance as proof of export and on that basis no demand can be raised as held in various judgments, therefore, merely for a procedural lapse in respect of admitted export of goods, no duty can be demanded. Demand relates to Jangad (approval) - HELD THAT - It is found learned counsel has not pressed this issue and accept the duty demand. Accordingly, the facts of this case are not entered into and the demand relates to Jangad (approval) is sustained. Penalty - HELD THAT - The penalty is also not imposable, hence, the same is set aside. The duty needs to be re-quantified - matter remanded to the adjudicating authority for passing a fresh order considering the observation - appeal allowed by way of remand.

Summary

Issues involved:
Alleged clandestine removal of goods based on recovered documents.

Details of the judgment:

Issue 1: Alleged clandestine removal based on recovered documents

The department issued a show cause notice proposing duty recovery of Rs. 39,43,754 on the basis of documents found during a visit. The matter was adjudicated ex-parte, and upon appeal, the Commissioner remanded it for re-adjudication based on 1178 pages of documents. The appellant submitted further documents, including a Chartered Accountant Certificate. The adjudicating authority accepted trading turnover but disagreed on the value of clearances in quotation, export, rejection, and Jangad sale. The Commissioner (Appeals) rejected the documents under Rule 5 of Central Excise Appeals Rules 2001, leading to the present appeal.

Issue 2: Defense against alleged clandestine removal

The appellant's counsel argued that the alleged clandestine removal in the quotation did not involve actual sales, as it was provided to potential buyers. A Chartered Accountant Certificate was submitted to certify export clearance and trading activity, which the adjudicating authority accepted. The counsel contended that the demand on export clearance was unjustified, as the goods were exported and supported by Form-H. The demand related to Jangad (approval) was accepted by the appellant during the argument.

Conclusion:

The Tribunal found that the demand based on the quotation was unsustainable, as there was no evidence of actual clearance. Regarding export clearance, the procedural lapse did not warrant duty demand since the goods were physically exported, supported by Form-H. The demand related to Jangad (approval) was accepted by the appellant. The penalty was deemed not imposable, and the duty was to be re-quantified. The matter was remanded to the adjudicating authority for a fresh order based on the observations.

( Pronounced in the open court on 22. 09. 2023 )