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TMI Blog2012 (10) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the Department. S/Shri Mukul Kumar Jain, Sr. Manager, K.N. Ramanathan, Consultant, for the Assessee [Order]. This Revision Application is filed by the Commissioner of Central Excise Service Tax, Jamshedpur against the order-in-appeal No. 21/JSR/09 dated 6-2-2009 passed by Commissioner (Appeals) Central Excise, Ranchi-II with respect to order-in-original passed by the Additional Commissioner, Central Excise, Jamshedpur. M/s. Tata Steel Ltd., Jamshedpur is the respondent in this case. 2. Brief facts of the case are that the respondent M/s. Tata Steels Ltd., Jamshedpur during the period December 1992 to January 1995 removed several consignments of Channel of MLS Mill TMT bars. Billets Wire Rods for exports under bond in terms of Rule 13 of the Central Excise Rules, 1944 and the relevant Notification issued thereunder. The necessary bonds were also duly furnished thereafter as required under subject notification. 2.1 The applicant was issued a show cause notice dated 13-2-1995 by the Superintendent of Central Excise, TISCO-I, Range Jamshedpur wherein it was alleged that the applicant has failed to furnish proof of export of goods within 6 months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that demand of duty charged to bond is enforcement of contractual obligation of exporter and not case of tax not levied or not paid. 4.2 That the time period allowed for export is six months from the date of removal of goods for export and during the relevant period the limitation provided under Section 11A was also six months from the date of removal. The Commissioner (Appeals) has held that limitation is attracted which does not appear correct. In such a situation, the demand made under Section 11A of the Central Excise Act, 1944 in respect of export will either premature or time-barred as the limitation period of six months starts concurrently. 4.3 As per the Board Circular No. 87/87/94-CX., dated 26-12-1994 issued from F.No. 209/18/93-CX.6, the original copy of AR-4 has to be handed over to exporter for filing proof of export and for getting the bond discharged. M/s. Tata Steel had been doing so but in cases where they did not file the copy of AR-4, they have blamed Customs Authorities. The Commissioner (Appeals) has accepted their contention, which does not appear correct, as they did not produce any evidence in the form of protest letter or representation of Customs/Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were sent along with original and duplicate copies of AR4s) by the custom authorities directly to the department. In other words, proof of export has already been furnished by custom authorities with remark that the exporter exported the goods under DEEC Scheme, hence procedure should be followed at the time of allowing F/C. Therefore when the custom authorities themselves confirming that the goods has been exported, the lower excise authorities should be allowed the credit in running bond account. In the present case all the copies of AR4 for disallowed portion of demand are with department. 5.4 As confirmed by the order of the Commissioner (Appeals) while deciding the case on merit and in respect of admittance memo/certificate observed in his order that In most of the cases, all AR4s (original and duplicate copies) along with covering letter (admittance memo) issued by Custom authorities, Calcutta, the proof of export original and duplicate copies has been directly sent to the office of Assistant Commissioner, Central Excise, Jamshedpur for admitting the proof of export and allowing final credit in running bond executed with them but few of them have not been considered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verified inspite of letter dated 11-10-2006 to Range Officials and hence the same was taken as a ground before Commissioner (Appeal). This needs to be re-examined by the lower authority since duty stands paid which needs re-examination. Therefore the order passed by the adjudicating authority is invalid and incorrect and deserve to be quashed. 5.8 The adjudicating authority has not considered being very old matter and asking the copy of DEEC book is not feasible since JDFT send all the DEEC books (both Part I II) to related customs authorities after redemption of the advance license. 5.9 That there is no proposal to charge any interest in the notice therefore to charge appropriate interest in the order is not correct and the order is liable to be quashed. 5.10 That in the premises aforesaid the question of imposition of any penalty upon TSL by the lower authority in any manner is not correct and penalty is unsustainable and invalid. 5.11 That in the aforesaid premises and in the interest of justice, TSL most respectfully prays that the appeal filed by the department should be set aside and order passed by the Commissioner (Appeals) should be upheld in its totality. 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being aggrieved with the said order-in-appeal, department has filed this revision application. 9. Government notes that both the applicant department as well as the respondent party are relying mainly either on the then applicable Board s Circular No. 87/87/94-CX., dated 26-12-1994 or the statutory provisions of Section 11A of the Central Excise Act, 1944 and Rules 13 14 of the Central Excise Rules, 1944. Accordingly, the case matter is hereby taken up for determining the aspect of applicability of limitation. On this issue, after due perusal of the relevant provisions of statute, Government finds the submitted grounds by the applicant Commissioner as not only legal and proper but also logical because the allowed period of exports and submission of exports is within a period of six months which too can be extended by the office of the jurisdictional Commissioner on sufficient cause/reasons being shown. As against this, the Section 11A provides for a maximum period of six months from the date of removals for demanding due applicable central excise duties on such goods. It is therefore because of this that the legislature has made a provision of contractual obligation by way (of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). If for any reason there is failure on their part to export, then it is only a question of enforcing of the bond. In other words, it cannot be said that the tax has not been paid, it is postponed to a future date only on the exigency of the exporters failure to export the goods. (paras 6, 7) The ratio of said judgement is squarely applicable to this case and therefore Government holds that in case of non-submission of proof of export, the demand is to be enforced in terms of contractual obligations of exporter under the bond executed by him. 10. For proofs of exportation also the para 10.1 of the above CBECs Circular is explicitly clear which mandates the below mentioned 4 documents as compulsorily to be submitted, these are : Original copy of AR-4 Duplicate copy of AR-4 in sealed cover received from Customs Officer (optional) Duly attested copy of Bill of Lading Duly attested photo-copy of shipping bill (Export Promotion (copy)] Government notes that there are no provisions of accepting any admittance memo/certificate to be substituted and accepted as full final proof of exports. So, the submission of the respondent party and holding by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From above, it is quite 12. From above, it is quite clear that while the handling/submission of duplicate copy of impugned AR-4s has been made as optional but that of original copy has been clearly made as responsibility of the exporter only. In case of any lapse/non-observance of any rule/procedure, the exporter (respondent herein) was not only responsible but had always been at liberty to agitate the matter in writing as per law there and then. He cannot now (or later on) hold the department responsible for not handing, following and submitting at due right time, the relevant original copy of impugned AR-4s of this case. It is clearly a lapse/non-compliance on the part of the respondents herein. Since original AR-4 were not submitted by respondent in some cases, the demand of Rs. 2,20,83,368.71 was rightly confirmed by the adjudicating authority. 13. Government also wants to impress upon and makes it clear here that simple and plain reading of the relevant applicable statute as clarified by the CBEC s Circulars are to be strictly adhered to and are held as binding by the Hon ble Supreme Court in its judgements (i) M/s. ITC Ltd. v. CCE [2004 (171) E.L.T. 433 (S.C.)] and (ii ..... 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