2012 (10) TMI 544 - CGOVT - Central Excise

Demand - Proof of Export alleged that no proof of export submitted within 6 months from the date of export Held that - while the handling/submission of duplicate copy of impugned AR-4s has been made as optional but that of original copy has been clearly made as responsibility of the exporter only. In case of any lapse/non-observance of any rule/procedure, the exporter (respondent herein) was not only responsible but had always been at liberty to agitate the matter in writing as per law there and then. He cannot now (or later on) hold the department responsible for not handing, following and submitting at due right time, the relevant original copy of impugned AR-4s of this case. It is clearly a lapse/non-compliance on the part of the respondents herein - Since original AR-4 were not submitted by respondent in some cases, the demand of Rs. 2,20,83,368.71 was rightly confirmed by the adjudicating authority. against assessee

Issues Involved:
1. Proof of export submission.
2. Applicability of limitation period.
3. Acceptance of admittance memo/certificate as proof of export.
4. Responsibility for non-submission of original AR-4 forms.
5. Imposition of penalty and interest.

Detailed Analysis:

1. Proof of Export Submission:
The respondent, M/s. Tata Steels Ltd., Jamshedpur, exported goods under bond without payment of duty as per Rule 13 of the Central Excise Rules, 1944. A show cause notice was issued for non-submission of proof of export within six months, demanding Rs. 9,45,55,422.06. The adjudicating authority confirmed a duty demand of Rs. 2,20,83,368.71 and dropped the remaining demand by accepting the proof of export for certain cases. The Commissioner (Appeals) remanded the matter, directing the assessee to provide a statement indicating cases affected by time-bar, rejected admittance memos, and original AR-4s not sent by Customs.

2. Applicability of Limitation Period:
The department argued that the limitation period under Section 11A of the Central Excise Act, 1944, is not applicable for non-submission of proof of export, as this is a case of enforcing a contractual obligation under the bond, not a case of tax not levied or paid. The Government upheld this view, citing the case of Unicure Remedies (P) Ltd., stating that the demand for duty is enforcement of the bond and not subject to the six-month limitation period under Section 11A.

3. Acceptance of Admittance Memo/Certificate as Proof of Export:
The Commissioner (Appeals) had accepted admittance memos as proof of export, but the Government found this incorrect. The CBEC Circular No. 87/87/94-CX., dated 26-12-1994, mandates the submission of the original AR-4, duplicate AR-4 in sealed cover, attested copy of Bill of Lading, and attested photocopy of the shipping bill as proof of export. The Government noted that there are no provisions for accepting admittance memos/certificates as substitutes for these documents.

4. Responsibility for Non-Submission of Original AR-4 Forms:
The Government held that the responsibility for submitting the original AR-4 forms lies with the exporter. The CBEC Circular clearly states that the original AR-4 should be handed over to the exporter for filing proof of export. The respondent's failure to submit the original AR-4 forms in some cases was deemed a lapse on their part, and they cannot hold the department responsible for this non-compliance.

5. Imposition of Penalty and Interest:
The adjudicating authority imposed a penalty of Rs. 2,000/- on the respondent. The respondent argued against the imposition of penalty and interest, claiming that the demand was confirmed due to procedural lapses by Customs authorities. The Government, however, upheld the penalty and interest, stating that the exporter was responsible for ensuring compliance with the submission of necessary documents.

Conclusion:
The Government set aside the order-in-appeal and restored the order-in-original dated 31-8-2006, confirming the duty demand of Rs. 2,20,83,368.71, as it was found to be legal and judicious. The revision application by the department succeeded, emphasizing the importance of adhering to statutory provisions and the specific requirements for proof of export as mandated by the CBEC Circulars.

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