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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 ..... uly 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 of export, cleared for export under bond executed under Rule 13 of erstwhile Central Excise Rules, 1944 without payment of duty under various AR-4 Forms (406 Nos. of AR4s). The applicant was therefore called upon to show cause to the Assistant Commissioner, Central Excise, Division-I, Jamshedpur as to why Central Excise Duty amounting to Rs. 9,45,55,422.06 should not be recovered under Rule 14A of the said Rules and why penalty should not be imposed upon the applicant under Rule 14A of the said Rules. 2.2 The case matter was proceeded to and after due process of law the jurisdictional Additional Commissioner of Central Excise, Jamshedpur completed the adjudication proceedings and vide order-in-original dropped demands of Rs. 7,24,72,053.29 and confirmed demand of Central Excise Duty of Rs. 2,20,83,368.71. Further, due differential duty with interest which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/Central Excise. 4.4 The Board vide Circular No. 87/87/94-CX.6, dated 26-12-1994 has prescribed the documents to be submitted as proof of Export and Admittance Memo is not recognized for the said purpose. 5. A show cause notice dated 25-6-2009 was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. The respondent vide their letter dated 23-8-2011 at the time of personal hearing filed their counter reply. Their main arguments are as under: 5.1 That the limitation is attracted and department's reliance on case of Unicure Remedies (P) Ltd. is not legal. The lower jurisdictional adjudicating authority in the said order adjudicated the issue of submission of proof of export in respect of 406 AR4s, out of which the details has been given only cases of 19 AR4s involving duty of Rs. 65,03,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es) 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 without giving any justifiable reasons that why the same could not be considered inspite of sending them the original and duplicate copies of AR4s while in other cases the same have been accepted e.g. AR4s No. 226 dated 12-10-1993, 355 and 356 both dated 28-11-1993. The adjudicating authority has accepted the proof of export based on covering letter (Admittance Memo) vide which the original and duplicate copies of AR4s were sent by Customs authorities to excise department and allowed the final credit by way of dropping the demand and not accepted the proof of export in case of AR4 No. 402 dated 26-12-1993. Therefore, the appellate authority has confirmed in his order that the department cannot reject the admittance memo/certificate selectively. For this purpose also the appeal need to be remanded for accepting all cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 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. 5.12 Further also, since the matter is based on fact, the lower authority should be directed to find out all the AR4s directly received by them from Custom Authorities or allowed final credit based on admittance memo/certificate received by them directly from Custom Authorities at Calcutta. 6. Personal hearing scheduled in this case on 2-5-2011, 26-7-2011 & 23-8-2011 was attended by Shri S.K. Guha Jhakunta, Assistant Commissioner, Central Excise, Jamshedpur on behalf of the applicant department and reiterated the ground of revision application with additional submissions wherein they have mainly relied upon the case matter of CCE, Jaipur v. Raghuvar (India) Ltd. reported in 2000 (118) E.L.T. 311 (S.C.) in support of their present case. Shri Mukul Kumar Jain, Sr. Manager and Shri K.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 language) of the "Bonds" to be furnished under relevant Central Excise Rules which clearly stipulates that such obligatory liability bonds will not be discharged till all the payments of the duties involved are determined and paid in full with interests. Government therefore holds the relevancy and coverage of cited case laws of (i) M/s. Unicare Remedies (P) Ltd. [2001 (132) E.L.T. 509 (G.O.I.)] and (ii) CCE, Jaipur v. Raghuvar (India) Ltd. [2000 (118) E.L.T. 311 (S.C.)] as directly applicable and that Section 11A of the Central Excise Act, 1944 is not applicable in this case for the purpose of limitation. Government in its order in the case of M/s. Unicare Remedies (P) Ltd. - 2001 (132) E.L.T. 509 (G.O.I.) has held as under :- "Demand - Limitation - Export under bond - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Commissioner (Appeals) herein which implies that admittance memo should be accepted as due proofs of exports cannot be said as legal and proper. 11. Government notes that a point deliberated upon in respondent party's submission and upholding the same in principal by the Commissioner (Appeals) here is that as per CBECs above Circular No. 87/87/94-CX., dated 26-12-1994, it is the customs department who has faulted and not followed the relevant instructions in respect of impugned movements of impugned AR-4s. In this regard, Government notes that para 9.1 and 10.1 of above CBEC Circular stipulates the below mentioned provisions for disposal of original and duplicate of total (sixtupplicate) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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