2015 (3) TMI 952 - CGOVT - Central Excise

Duty demand u/s 11A (1) - Penalty u/s 11AC - Failure to submit the proof of export in stipulated time in respect of the excisable goods cleared from the factory premises without payment of duty against letter of undertaking under DEPB Scheme - Held that - Commissioner (Appeals) upheld the said orders-in-original mainly on the ground that the dates of shipping bills are prior to the dates of ARE-1, BRC do no bear the signature of the bank officer, copies of document were not legible and in case of ARE-1 No.25/6.2.09, the value shown in ARE-1 is. Euro 40886.80 whereas in export invoice, value is shown as Euro 37345.20. - customs have certified in the relevant shipping bills the export of said goods and also mentioned the relevant ARE-1 Nos. in the shipping bill. So it cannot be said that these shipping bills do not relate to the ARE-1 in question. As regards difference in ARE-1 & export invoice value in respect of ARE-1 No.25, applicant has that it was due to difference in foreign exchange rate. The reason is acceptable subject to verification of its correctness. Customs has certified the export of goods in ARE-1 & shipping bill. So this objection does not sustain. Applicant has now submitted a BRC bearing signature and stamp of Bank. The legible copies of all documents are claimed to be available with them. As such proof of export can be considered for acceptance after verifying the authenticity of BRC, and the fact that difference in value was due to difference in exchange rates. - Matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
1. Confirmation of duty demand due to non-submission of proof of export within the stipulated time.
2. Legitimacy of documents submitted as proof of export.
3. Condonation of delay in filing the revision application.

Issue-wise Detailed Analysis:

1. Confirmation of Duty Demand:
The Deputy Commissioner of Central Excise confirmed the demand of duty under proviso to Section 11A (1) of the Central Excise Act 1944, along with interest under Section 11AB and penalty under Section 11AC, due to the applicant's failure to submit proof of export within the stipulated time. The demand arose as the applicant did not provide the necessary documents proving the export of excisable goods cleared without payment of duty under the DEPB Scheme.

2. Legitimacy of Documents Submitted:
The Commissioner (Appeals) upheld the original order, noting several irregularities:
- Illegible seals and emblems of customs officers.
- Discrepancies in dates and values between ARE-1 forms, export invoices, and shipping bills.
- Missing signatures on the Bank Remittance Certificates.
- Hazy and illegible copies of submitted documents.

The applicant contended that:
- The discrepancies in dates and values were due to typographical errors and exchange rate variations.
- The haziness of documents resulted from office relocation and subsequent photocopying from mixed files.
- The unsigned Bank Remittance Certificates were computer-generated and later signed by bank officials.

The applicant provided detailed explanations for each discrepancy and submitted clearer copies of the documents.

3. Condonation of Delay:
The applicant filed an appeal before CESTAT, which was dismissed for lack of jurisdiction. The applicant then filed the revision application with a delay, requesting condonation on the grounds that the delay was due to pursuing the appeal before the wrong forum. The government considered the delay condonable, referencing judgments from various High Courts that allowed exclusion of time spent pursuing an appeal before a wrong forum under Section 14 of the Limitation Act 1963.

Government's Decision:
The government set aside the impugned order-in-appeal and remanded the case back to the original authority for a fresh decision. The applicant was directed to submit all relevant documents within one month for verification. The original authority was instructed to verify the authenticity of the Bank Remittance Certificates and the correctness of the exchange rate differences. A reasonable opportunity for a hearing was to be afforded to the concerned parties.

Conclusion:
The revision application was disposed of with instructions for a fresh examination of the submitted documents and verification of the applicant's claims. The government emphasized the need for accurate and legible documentation to substantiate the proof of export.