2019 (12) TMI 1090 - AT - Central Excise

Export of goods or not - clearance of Aviation Turbine Fuel (ATF) when loaded into flight operating on international route - whether the said clearance should be considered as exported by the appellant or otherwise? - necessary documents not supplied to appellant - principles of natural justice - HELD THAT - A report was submitted by the Assistant Commissioner vide letter dated 20/02/2013 which was not given to the appellant and the de novo order was passed on the back of the appellant without putting them to notice of what is observation of Assistant Commissioner, why they have not accepted the documents submitted by the appellant. The Assistant Commissioner was supposed to only establish that the ATF supplied is amount to export or otherwise. So, the same can be established not only on the basis of ARE-3 but on the basis of other documents - there is a violation of principle of natural justice in passing the de novo order. Appellant may be supplied the letter/report given by the Assistant Commissioner and also an opportunity of personal hearing for making any additional submission, if required. Thereafter, a reasoned order may be passed - The appeal is allowed by way of remand to the Adjudicating Authority.

Summary

Issues:
Whether the clearance of Aviation Turbine Fuel (ATF) loaded into flights operating on international routes should be considered as exported by the appellant.

Analysis:
The issue in this case revolves around determining whether the clearance of Aviation Turbine Fuel (ATF) to flights operating on international routes constitutes an export by the appellant. The Tribunal had previously remanded the matter to the Adjudicating Authority to reevaluate the available documents to ascertain if the supply to international flights amounts to export. Despite additional documents submitted by the appellant post-remand, the Adjudicating Authority upheld the demand, leading to the current appeal.

The appellant's counsel argued that they had submitted documents during the initial adjudication and provided additional evidence post-remand to establish that the supply of ATF to international flights should be considered as export. However, the Adjudicating Authority, based on a report from the Assistant Commissioner, concluded that the appellant failed to provide sufficient evidence regarding re-warehousing and relevant documents for duty-free clearance. The counsel contended that the principle of natural justice was violated as the appellant was not given an opportunity to address the Assistant Commissioner's report and explain the submitted documents.

On the other hand, the Revenue representative supported the findings of the impugned order. The Tribunal considered the documents submitted by the appellant during the first adjudication and after the remand, noting that the Assistant Commissioner's report was not shared with the appellant before passing the de novo order. The Tribunal emphasized that the Assistant Commissioner's role was to determine if the ATF supplied constituted export, which could be established through various documents, not limited to ARE-3.

Consequently, the Tribunal found a violation of the principle of natural justice in issuing the de novo order without providing the appellant with an opportunity to address the Assistant Commissioner's observations. Therefore, the impugned order was set aside, and the matter was remanded to the Adjudicating Authority, with all issues kept open for reconsideration.

As part of the remand, the appellant was directed to be provided with the Assistant Commissioner's report and granted a chance for a personal hearing to make additional submissions if necessary. The Adjudicating Authority was instructed to issue a reasoned order within three months from the date of the Tribunal's decision.