2016 (9) TMI 1021 - HC - Central Excise

100% EOU - Whether the CESTAT has committed substantial error of law in deciding the case of appellant without production of documents/evidence, which are already seized and in the custody of the respondent authority. Also whether CESTAT has committed substantial error of law in casting the burden of proof on the appellant where the documents/evidence, which are already seized and in the custody of the respondent authority - appellant exported goods under the cover of six ARE-1s during the period from 13.2.2002 to 17.3.2003 but failed to produce proof of export in respect of 2 ARE-1s, both dated 29.1.2003, involving central excise duty - Held that - the Tribunal, after affording an opportunity of hearing to the parties, has noted that by an order, the matter was remanded to the adjudicating authority to consider the question of eligibility of the appellant to the benefit of Notification No. 125/84 CE dated 20.5.1984. That before the Tribunal the appellant had submitted that though they had prepared the said two ARE-1s, the same were subsequently cancelled, but there was no corresponding entry in their export register. The Tribunal with reference to the letter dated 28.4.2003 to which reference has been made for the appellant, found that the Superintendent of Customs detained some register for verification and that the matter was fixed for personal hearing before the adjudicating authority on four occasions. The Tribunal further found that there was no evidence to the effect that the appellant had approached the Superintendent of Customs for release of the goods which were detained in 2003, nor was the seizure memorandum produced by the appellant. The Tribunal took note of the fact that it had remanded the matter twice and upon appreciating the evidence on record, found that there was no dispute on facts that the appellant had cleared the goods under cover of ARE-1s without payment of duty and that the same was not recorded in the export register. That, the appellant failed to provide any evidence that the two ARE-1s were cancelled and also found that the plea of seizure of the documents is without any basis. It is in these circumstances that the Tribunal, upon appreciation of the evidence on record, has not accepted the case of the appellant that there was seizure of documents and that there was any failure on the part of the adjudicating authority to furnish such documents to the appellant. Therefore, it is not possible to state that the conclusion arrived at by the Tribunal is, in any manner, contrary to the material on record. The impugned order passed by the Tribunal does not give rise to any question of law, much less, a substantial question of law, warranting interference. - Decided against the appellant

Summary

Issues:
Challenging order of Customs, Excise and Service Tax Appellate Tribunal regarding production of documents/evidence and burden of proof.

Analysis:
The appellant, a hundred percent EOU engaged in manufacturing, exported goods under six ARE-1s but failed to produce proof for two ARE-1s dated 29.1.2003. The adjudicating authority confirmed duty demand under these ARE-1s and imposed penalties. The appeal before the Tribunal was unsuccessful.

The appellant argued that evidence was produced to show compliance with four transactions, while no export was made for the remaining two. The appellant requested seized documents to establish cancellation of ARE-1s, but they were not furnished, breaching natural justice principles. The court reviewed arguments and lower authorities' orders.

The record showed previous litigation rounds and the appellant's failure to request document furnishing earlier. The Tribunal noted the remand order to consider eligibility for a benefit notification. It found no evidence of the appellant approaching Customs for detained goods or document seizures. The Tribunal rejected the appellant's claim of document seizure, lack of evidence for ARE-1s cancellation, and absence of basis for the plea.

The court found the Tribunal's conclusions consistent with the evidence on record, dismissing the appeal as it did not raise any substantial question of law. The impugned order was upheld, and the appeal was dismissed.