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TMI Blog2004 (7) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the Commissioner (Appeals) confirmed the duty demanded by the Original Authority but reduced the penalty of Rs. 12,000/-. 3.Shri Aravind P. Datar Senior Advocate along with Shri Saravanan advocate appearing for the appellants pleaded that during March, 1999, in anticipation of an export order for 30,000 telephone instruments from Shri Lanka Telecom Ltd. through Marubeni Corporation of Sri Lanka the appellants filed form AR-4 and made entry in RG-I. The filing of AR-4 was a mistake as the marketing division of the appellant believed that they will be able to export 30,000 telephones and they could show higher export during the period ending 31-3-1999. Invoices referred to in the AR-4s were serially numbered without generating invoice. The appellants were waiting for a formal export order from Sri Lanka Telecom Ltd., but contrary to their expectations, it did not receive the export orders as anticipated earlier, though they had made informal arrangements with the suppliers of the components/inputs to meet the requirement to manufacture 30,000 instruments for the anticipated export order. With the efflux of time, the Accounts Department of the appellant which handled export r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny actual invoice being prepared. The lapse was noted only after the excise department inquired on the status of export of the goods. In reply to question No. 3 he replied that the goods covered under the said AR-4s were never manufactured. The goods cleared for home consumption was cleared only after payment of duty. In reply to question No. 4 he stated that the error was due to clerical mistake and due to year end work pressure and reiterated that the goods were not manufactured and Department was not informed because of the bona fide belief that there was no loss of revenue. He further pleaded that for manufacture of 30,000 telephone instruments, they were not having the raw-material and he produced the CA s certificate wherein it is certified that the appellants did not manufacture 30,000 numbers of telephones during March 99 for which form AR-4 No. 101/98-99 to 106/98-99, dated 31-3-1999 were filed and computer generated invoice numbers were allotted. They verified the invoices of the components received during the period from which it is evident that they did not have components to manufacture 30,000 numbers of telephone instruments during the period in question. They have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their RT-12 return for the month of March, 1999. Therefore all the documents which are submitted to the Central Excise department clearly show that the goods were manufactured and cleared by them for export. The appellant never approached Central Excise department that the goods were not manufactured or were not cleared for export. Therefore it is clear that they have cleared the goods from the factory for export without payment of duty. Therefore the lower authorities have correctly confirmed the demands. He also pleaded that, it is not for the department to show that the goods have been manufactured since the appellants have themselves shown in their RG I register that the goods have been manufactured and have also filed application for clearance for export in form AR-4 and also filed the necessary RT-12 returns showing the manufacture and clearance. Therefore the appellants have no case. At this late stage, it is not possible to accept that they had wrongly entered the goods in the RG-I register. He also pleaded that the certificate of the CA which is being produced now at the time of hearing should not be admitted as the appellant had never produced such a document earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. To the great surprise of all, they came to know that shop floor had assembled the open market phones instead of export phones. On enquiry, the error in executing the production appeared to be an error in normal course of human conduct. In the last but one para it is also mentioned in their reply to SCN that their expected order from Sri Lanka Telecom fructified and they have supplied 47,840 telephones under AR-4 as per Annexure I. AR-4 shown in Annexure I are dated from 20-5-1999 to 3-2-2000. Thus plea of the appellant that the order was cancelled also does not appear to be correct. The decisions relied upon by the appellant are regarding clandestine removal or where the department has alleged extra production and not relevant to present case. In the present case, the appellants themselves have shown the manufacture of the goods in their own records and in the statement submitted by them to the department. They have also submitted the application for clearance of the goods for export. Therefore it is not for the department to establish whether the goods were manufactured or cleared when the appellants themselves have shown in their record the manufacture and clearance of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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