9911796707
TMI Blog2012 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that the appellant did not make the pre-deposit as was ordered by Order No. 614/07-SM(Br), dated 19-7-2007. The appellant moved the High Court and later the Hon. Supreme Court after making the pre-deposit. As per direction of the Apex Court a review petition was filed before the Hon. High Court. The Court vide order dated 17-2-2012 in DB Civil Review Petition Number 271/2011 (D) in DB Civil Writ Petition No. 13626/2008 has ordered that the appeal before the Tribunal be restored. Accordingly the appeal is being restored to its original number. 3. I have heard the representative for Revenue and perused the records and I proceed to decide the appeal. 4. The Appellants are a Hundred Percent EOU having a Customs bonded war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The SCN was issued on 16-06-2004. So the demand is beyond 6 months from the date of clearance and hence time barred. (ii) They filed an application for remission of duty on goods lost which was not decided or considered while passing the impugned adjudication order. (iii) Since 7 drums were lost after customs examination while the goods were in the custody of the custodian appointed by the Customs department there cannot be any liability on account of the goods lost. (iv) After hearing of the case on 13-5-2005 on 4-4-2006 a corrigendum to the SCN was said to be issued which was not received by the appellant. This corrigendum was to the effect that Section 114(ii) should be read in place of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These sections are not applicable for goods entered for export. Since this was the legal position there is no clear finding whether the goods were lost actually from the custody of the custodian. 10. Considered arguments on both sides. This is a case of clearance of excisable goods from the factory of a Hundred Percent EOU. So the demand is for excise duty. Such duty is to be calculated at rate rates applicable for customs duties of such goods imported from outside the country in view of provisions in Section 3 of Central Excise Act. But that does not make this a short payment of customs duty. The provisions applicable for duty short levied for clearences from 100 EOU is Section 11A of the Act. The time limit under this provisions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined this claim and stated that the appellant has not lodged any FIR. No clear proof is produced in this proceeding either. It is not known whether the goods were insured and whether any claim has been made and settled. At any rate this issue is not relevant for determining the demand. 14. Before demanding duty from the custodian of the goods there should be a claim for value of goods at least by the appellant from the custodian. There are no such facts coming out in the pleadings. 15. The argument that the adjudicating authority has made a presumption that the goods are cleared to DTA for demanding duty has also been examined. The appellant is presuming that the goods are exported without producing proof of export. When the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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