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TMI Blog2013 (7) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer. Non receipt of acknowledged ARE-1 from the SEZ unit will not be an issue for the manufacturer, whose goods were cleared for export. If any duty liability arises for non -delivery of the goods to SEZ, it would be on the merchant exporter as the bond which has been entered into, has been debited for clearance of such goods - Manufacturing units were not responsible for the production of proof of exports and if the goods are not exported the entire responsibility rests on the merchant exporter as per the decision in the case of Jay Jagdish Sugar –[2004 (3) TMI 604 - CESTAT, MUMBAI]. Also, Tribunal in the case of Shree Vithal S.S.K. Ltd. v. Collector of Central Excise reported in [1991 (12) TMI 149 - CEGAT, BOMBAY ] has held that in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 Various types of handles CRTSH 94032010 2,61,784/- 37,750/- Total 5,66,184/- 81,644/- 3. M/s. Kich Marketing Pvt. Limited, being merchant exporter, has executed B-1 bond before the adjudicating authority which was duly accepted on 29.4.2008. None of the appellant produced the admittance of goods into SEZ i.e. proof of export before the adjudicating authority for the above mentioned ARE-1s. The above observation culminated into issue of show cause notice dated 17.9.2009. The adjudicating authority confirmed the demand of Rs. 81,644, appropriated the same being paid by the appellant herein, M/s. Fitwell Technologies Pvt. Limited under protest and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar -- 2004 (175) ELT 314 (Tri. Mum.) and 4R Health Care Products - 2004 (166) ELT 469 Tri. Mum.). 6. Learned departmental representative, on the other hand would submit that the appellant herein on his own has paid the duty liability, though under protest. It is his submission that once the ARE-1s are not received after the goods are warehoused in the SEZ, duty liability arises on the manufacturers. He would submit that appellant is not contesting the issue and acceding to the payment of duty while the lower authorities directed him to do so. 7. I have considered the submissions made at length by both sides and perused the record. 8. The undisputed facts are that the appellant herein cleared the consignment under ARE-1 No. 15/2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r two appellants we find that the sugar was cleared by them without payment of duty on the basis of the certificates issued by the Superintendent. As such the said manufacturing units were not responsible for the production of proof of exports and if the goods are not exported the entire responsibility rests on the merchant exporter. The observations made by the Commissioner that the said two appellants helped the exporter with intent to procure the goods for export and divert the same for home consumption without following proper procedure are not supported by any evidence on record so as to invite penal action against the said two appellants. Accordingly we set aside the imposition of personal penalties of Rs. 1,00,000/-(rupees one lakh) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly showing as to whether the same are in respect of the textured yarn manufactured by the appellant, we find that the said fact is irrelevant inasmuch as admittedly the duty liability would fasten upon the merchant manufacturer, who had sent the raw material to the present appellant for manufacture. The exporter had filed the bond for export of the goods in question. The language of the proviso to notification is clear as regards the satisfaction of the Assistant Commissioner. The said proviso provides that exemption is available to the textured yarn subject to the fact that the same is to be exported and not subject to the fact that the same is actually exported. Admittedly the textured yarn manufactured by the appellant was to be exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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