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TMI Blog2005 (5) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion. It was found that the quadruplicate copy of invoice prescribed in the said notification was not produced by the exporter within the prescribed limit of three months from the date of removal of goods. The duplicate copy of the invoice duly endorsed by the officers of Nepal Customs certifying the export of subject goods was also not received by the Range Officer. Hence the demands were confirmed. 2. The appellants took the stand that they had addressed several letters to the office of Indian Customs at Nepal Border to issue quadruplicate copy of invoice but the same was not issued and was not received by them. So also the range officer did not receive the duplicate copy of invoice. However, they produced proof of export of the said consignment and the Office of Nepal Customs had certified receipt of goods. They had also produced all transporter s certificates and documents with regard to delivery of the consignment. They also produced a certificate issued by the banker to the effect that the proceeds of export, received in the form of convertible currency and a copy of demand draft of Rs. 1,44,000/- was issued by the State Bank of India, Nepal. However, the authorities bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the authorities have insisted on the production of quadruplicate duplicate copies of the invoice. The party cannot be blamed for non-production of quadruplicate duplicate copy as the same has not been issued and are not received by them. We notice that so long as proof of export has been produced which is not challenged by the department, the demand under Rule 14A is not sustainable. Therefore, the impugned order is set aside and appeal allowed. (Pronounced in open Court) Sd/- S.L. Peeran, Member (J) Dated 12-2-2004 7. [Contra per : Jeet Ram Kait, Member (T) (Oral)]. - I have perused the order recorded by my learned brother Shri S.L. Peeran, Member (J) and I am not able to persuade myself to agree with him that the appeal is to be allowed by setting aside the order impugned. 8. In this case, M/s. Ruby Chlorates (P) Ltd., are holders of Central Excise Licence No. 51/92 for manufacture of Chlorates falling under Tariff Heading No. 2829.00 and are clearing the same on payment of duty for home consumption. The appellants herein are merchant-exporters/importers. The manufacturers have cleared 2000 Kgs of Pottasium Chlorates (hereinafter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensuring that the particulars tally, and the seals are in tact, after making necessary entries in the register maintained for the purpose, allow the goods to cross into the Nepal/Bhutan and certify accordingly on each of the four copies of the invoice and also indicate the serial number in red ink prominently visible. Then the Customs officer shall return the quadruplicate copy of the invoice to the Exporter/his agent after endorsement under his signature. He will also deliver the original copy of the invoice duly endorsed to the exporter/his agent for presentation to the Nepalese/Bhutanese Customs Officer. (7) The duplicate copy of the invoice shall be returned by the Nepalese/Bhutanese Customs to the officer of Customs of the Land Station in India and the said copy will be forwarded by the Customs officer to the incharge of the factory or warehouse from which the goods were removed. (8) Exporter will submit the quadruplicate copy duly endorsed by the officer at the land customs station to the Central Excise officer in- charge of the factory or the warehouse, as the case may be along with Bank certificate evidencing receipt of payment, freely convertible currency with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be produced in terms of the Notification. A mere unauthenticated photocopy of the certificate from the Nepalese Customs cannot take the place of proof in regard to entry of the goods into Nepal. The Bank certificate has also not been produced before us to verify the contention that the bank draft was relatable to the export said to have been made. Further, in terms of proviso to Rule 14A, where the exporter fails to furnish proof of export, it would suffice the requirement of Rule, if he is able to account for such goods to the satisfaction of the Collector. In this case the very reason for initiation of proceedings is that the party has failed to satisfy the Collector in this regard. Had the appellants produced at least some proof that the goods have been presented before the Indian Customs Land Station at Indo-Nepal Border, perhaps, their claim would have been considered favourably. Appellants have cited the decision in the case of CCE, Guntur v. Binny Ltd. reported in 1987 (31) E.L.T. 722 wherein it has been held that minor technical breach cannot be a ground to deny benefit of rebate. In the present case, the breach is not minor or technical in nature. Here is a case where none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority denied the benefit of the Notification to the exporter and demanded duty of excise from them on the export goods. The relevant portion of the order passed by the Assistant Commissioner is re-produced below : I have carefully gone through the records of the case; reply of the exporter; submissions made by the assessee and exporter during the personal hearing. Central Excise Rules prescribe various procedures for export. In the instant case, the export was made by the exporter to Nepal as per Notification No. 51/94, dated 22-9-1994 issued under Rule 13. The assessee has not produced the quadruplicate copy of the invoice prescribed therein till date. Also, the duplicate copy of the invoice too is not received so far from the land customs station of Indo-Nepal border. The assessee have however filed various documents namely, certificate from Customs Office, Birganj (Nepal), Bank certificate and copy of the Demand Draft issued by M/s. Nepal SBI Bank Ltd. According to procedures laid down under notification cited above, the exporter has to produce the quadruplicate copy of the invoice, but even after a lapse of nearly 3 years, they have failed to produce the same. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) regardless of the proviso to Rule 14A. I would have remanded the case to the original authority, had I had occasion to consider this appeal in the first instance. Now, as Third member, I have to endorse the view taken by one of the ld. Members. Ld. Member (Technical) has held that none of the conditions stipulated in the Notification was complied with by the exporter. With due respect, I have to disagree with this view inasmuch as it is not even the Revenue s case that the party did not comply with any of the conditions of the Notification. The case of the Revenue is that the exporter is not entitled to duty-free clearance of the goods for export on account of non-production of endorsed quadruplicate copy of invoice. It is not their case that the other conditions of the Notification were also yet to be complied with. In the facts of the case, the view taken by ld. Member (Judicial), being proximate to what has been observed by me hereinbefore, has to be supported. 13. In the result, the impugned order is set aside and the appeal is allowed. Registry is directed to take steps for pronouncement of the majority decision. Sd/- P.G. Chacko Member (J) Dated 6-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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