2004 (5) TMI 227 - AT - Central Excise

Summary

Issues involved:
1. Acceptance of proof of export by competent authority.
2. Payment of duty and interest for goods diverted for home consumption.

Analysis:

Issue 1: Acceptance of proof of export by competent authority
The appellant contended that the Commissioner's appeal erred in accepting the fact that proof of export had been received for certain goods. The appellant claimed to have received proof of export for 8 AR-4S, while the competent authority had not issued proof of admittance for 6 AR-4S due to failure to export within the extended period. The appellant argued that the duty amount for these goods could not be issued by the competent authority. The Revenue, on the other hand, argued that the duty amount and interest were paid incorrectly for 7 AR-4S diverted for home consumption. The Deputy Commissioner demanded the differential duty and interest, which the appellant had not paid correctly according to the CBEC manual.

Issue 2: Payment of duty and interest for goods diverted for home consumption
The Respondent's advocate argued that the goods were exported within the extended period, with some sets exported afterward. The Superintendent mentioned in Annexure II that proof of admittance was not issued for 6 AR-4S. The Respondent relied on previous judgments to support the claim that the factum of exports had been admitted, and penal provisions should not apply. Regarding the 7 AR-4S diverted for home consumption, the duty was paid at the time of diversion, but there was a discrepancy in the calculation of duty. The Respondent contended that no show cause notice was issued for the differential duty, and the appellant was not given an opportunity to defend against the demand for additional duty. The principle of natural justice requires that the assessee must have a chance to present their case. The appeal was deemed not maintainable on this count as well.

In conclusion, the appeal was rejected, and the Department was permitted to initiate proceedings for the 7 AR-4S diverted for home consumption if there was any shortfall in duty payment.