2015 (10) TMI 1702 - AT - Central Excise

Duty demand - Illicit diversion of goods - Non availability of original ARE-1 - Held that - consignment of the garments was available in the factory and the Jurisdictional Range Officer after inspecting the same has given a report that those goods are in accordance with the description given in the invoices, but still he has said that it cannot be proved that the goods available in the factory are the same as the goods cleared under ARE-1 No. 30/2011-2012 dated 10/5/11. While it is true that the appellant did not intimate the return of the goods within 24 hours, the fact remains that they have produced Transport company s GR and as such no inquiry has been conducted with the transporter. Moreover, there was a consignment of Kaftans available in the factory which appeared to be covered by the export invoice. In view of these circumstances, I hold that the duty cannot be demanded. Only lapse of the appellant is that he did not intimate to the department in time which cannot lead to demand of duty. - impugned order is set aside - Decided in favour of assessee.

Issues:
1. Duty demand on allegedly diverted goods cleared for export under ARE-1.
2. Failure to inform the department about the return of goods within the specified time frame.
3. Discrepancies in producing original and duplicate copies of ARE-1.
4. Dispute over the matching of goods in the factory with those cleared under ARE-1.

Analysis:

Issue 1: Duty demand on allegedly diverted goods cleared for export under ARE-1
The appellant, a manufacturer of readymade garments, cleared a consignment of Kaftans for export under bond. The consignment was rejected by the buyer's representative due to quality issues. The appellant returned the goods to the factory and later informed the department about the return. The Range Officer inspected the goods in the factory and noted that they matched the description in the invoices. However, it was contended that the goods in the factory were not the same as those cleared under ARE-1. The duty demand was based on the allegation of illicit diversion. The Tribunal held that the duty demand was not justified as the goods were returned to the factory, and the only lapse was the delay in informing the department, which was not sufficient to demand duty.

Issue 2: Failure to inform the department about the return of goods within the specified time frame
The appellant failed to inform the department about the return of the goods within the required 24-hour period, as per Board instructions. Despite this lapse, the Tribunal found that the goods were returned to the factory and that the delay in informing the department did not warrant a duty demand.

Issue 3: Discrepancies in producing original and duplicate copies of ARE-1
The appellant was unable to produce the original and duplicate copies of the ARE-1 under which the goods were cleared for export, as they were lost. Fresh copies of ARE-1 were prepared, leading to discrepancies. The Tribunal noted these discrepancies but ultimately ruled in favor of the appellant based on other evidence and circumstances.

Issue 4: Dispute over the matching of goods in the factory with those cleared under ARE-1
There was a dispute over whether the goods in the factory matched those cleared under ARE-1. The Range Officer's report indicated that the goods in the factory matched the description in the invoices but could not be proven to be the same as those cleared under ARE-1. Despite this uncertainty, the Tribunal held that the duty demand was unjustified due to lack of concrete evidence of diversion.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal based on the finding that the duty demand on the allegedly diverted goods cleared for export under ARE-1 was not substantiated.

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