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TMI Blog2013 (6) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is to be filed and executed before Assistant Commissioner/Deputy Commissioner of Central Excise. As such applicant violated this substantial condition of Notification No. 42/2001-C.E. (N.T.). The scrutiny of monthly ER-I returns as well as copies of ARE-1 reveal various discrepancies. The value and quality of goods cleared from factory did not tally with the value and quality of goods finally exported. The applicant has neither followed the self-sealing procedure while clearing goods for export nor cleared the goods under Central Excise supervision. The goods are first cleared to merchant-exporter who finally claimed to have exported these goods. There was no marks/numbers/Lot Nos. on the goods so the identity of goods cannot be established. In the absence of examination of goods in Central Excise supervision and also not having any marks/numbers/lot numbers on the goods, it cannot be established that goods cleared from factory have actually been exported by the merchant-exporter. As such, export of said goods is not established. The submission of Bond Form was substantial requirement and not a mere procedural requirement. When non-compliance of said requirement leads t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The said LUT had not been accepted by the Assistant Commissioner, Central Excise Division, Alwar and returned in original to the Central Exicise Range, Bharatpur vide his office letter C. No. V(5)23/LUT/2006/2035, dated 14-8-2006. The Superintendent, Central Excise Range, Bharatpur vide his office letter C. No. CE-20/2/Misc/2003/17, dated 21-8-2006 sent through registered post returned the said LUT in original to the applicant intimating the objections and shortcomings in the said LUT. 2.2 The applicant vide his letter dated 31-3-2007 submitted photocopies of ARE-1 No. 1 to 12 to the Sector Officer, Central Excise Sector, Dholpur. While scrutiny of the same it was noticed that the applicant had cleared goods for export without payment of duty by mentioning therein the reference of LUT-1 dated 1-8-2006 which was never accepted/approved by the competent authority for allowing/permitting the clearance of excisable goods without payment of duty for export under the Central Excise Law, from the registered premises. 2.3 The applicants were asked by the Superintendent, Central Excise, Range, Bharatpur vide his office letter C. No. CE-20/2/misc/2003/262, dated 9-4-2007 to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Range, Bharatpur in compliance to the summon dated 14-5-2007 but did not tender his statement due to self-illness and assured that he would be appeared later on after confirming on telephone but he did not appear thereafter on any occasion even after issuance of Summons to him on 28-5-2007, 20-6-2007, 12-7-2007. 2.5 The applicant vide his letter dated 15-7-2007 submitted that they had already sent reply vide their letter dated 10-5-2007. They further informed that they had already submitted the original ARE-1 No. 1 to 21 duly signed by the Supdt. (Customs), ICD along with copy of Shipping Bills and Bills of Lading duly certified by the Exporter as a proof of export and there was no fault on their part regarding export clearance. 2.6 The discrepancies sought while scrutiny of the documents furnished by the applicant were intimated to Sh. Kuldeep Agarwal, CMD of the applicant with a copy to the Assistant Commissioner of Customs, ICD, Agra vide letter C. No. CE/20/2/Mise/2003/693 to 695, dated 27-8-2007. Further reminders were issued on 3-9-2007 and 21-9-2007 to Sh. Kuldeep Agarwal, CMD. 2.7 The Superintendent, Customs, ICD, Agra vide his office letter C. No. VII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,950/- and accordingly there is a value difference of ₹ 4,16,850/- in the figures shown in ARE-1 viz-a-viz ER-1 returns. 2.12 It has also been noticed that quantity and No. of packages shown in ARE-1s are not tallied with respective Shipping Bills and Bills of Lading in respect of some ARE-1s. It also appears that some ARE-1s are mutilated. ARE-1 No. 04, dated 7-10-2006 showed 50 packages (1250 pairs) of CIM/H covers whereas respective S/Bill No. 03531 dated NIL and Bill of Lading showed 48 Bundles (1200 Pcs.) of CIM/H covers. Moreover, the ARE-1 has not been signed and certified by the Customs authority. Similarly, ARE-1 No. 01, dated 4-8-2006 showed 220 Packages (1100 Sets) whereas the respective S/B as well as Bill of Lading showed the quantity 250 Bundles (1250 Sets). There is mutilation in ARE-1 No. 02, dated 17-9-2006 where quantity originally shown as 52 packages (1250 sets) was changed as 50 bundles (1202 Pcs). 2.13 It appears that the quantity shown in monthly ER-1 Returns are not tallied with the ARE-1s so as to enable the Department to ascertain the actual quantity removed without payment of duty. The said exports were not got supervised from the Jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the provision of Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19 of Central Excise Rules, 2002 with an intent to evade payment of duty and therefore extended period under the proviso to Section 11A(1) of the Central Excise Act, 1944 is invokable in this case. 2.16 Therefore a show cause notice C. No. V(72) 15/Off/210/2007/ 2980, dated 29-11-2007 was issued to them to show cause and explain as to why :- (i) The Central Excise Duty amounting to ₹ 20,69,741/- should not be recovered them under proviso to Section 11A(1) of the Central Excise Act, 1944 along with interest under Section 11AB of the Central Excise Act, 1944. (ii) Penalty should not be imposed upon them under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. (iii) Penalty should not be imposed on Shri Kuldeep Agarwal, CMD or the applicant Shri J.L. Arora, Director of applicant and Shri R.C. Sharma, Authorized signatory of applicant under Rule 26 of the Central Excise Rules, 2002. 2.17 The adjudicating authority after following the due process of law decided the case vide impugned order-in-original No. 24/09, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had failed to give any finding on serious negligence occurred on the part of the departmental authorities which caused undesirable and expensive litigation to the appellants. 4.4 The applicants have submitted all the corroborative evidence to establish that the goods cleared from their factory have eventually been exported. Even after furnishing of proof of export pertaining to the entire quantity and reporting thereof in the monthly returns, the adjudicating authority as well as the Commissioner (Appeals) had confirmed the demand of duty and penalty ignoring all the citations relied upon by the applicants. In this regard reliance is placed on the following decisions : Benara Bearings Pvt. Ltd. v. Collector of Central Excise, Kanpur-I [1998 (12) LCX 0188 = 1999 (105) E.L.T. 398 (Tri.-Del.)] Commissioner of Central Excise, Jamshedpur v. Tisco (Tube Division) [2003 (03) LCX 0163 = 2003 (156) E.L.T. 777 (Tri.-Kol.)] Shreeji Colour Chern Industries v. Commissioner of Central Excise, Vadodara [2007 (10) LCX 0374 = 2009 (233) E.L.T. 367 (Tri.-Ahmd.)] Regency Ceremics Ltd. v. C.C. C.E. (Appeals), Visakhapatnam [2008 (221) E.L.T. 101 = 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is within condonable limit, condones the said delay and takes up revision application for decision on merit. 8. Government observes that the applicant furnished letter of undertaking (LUT) in the form of UT-1 for export of the goods without payment of duty under Rule 19 of Central Excise Rules, 2002 and exported the goods through merchant-exporter. The original authority confirmed demand of duty with applicable interest on the ground that the applicant having exported the goods under Rule 19, ought to have executed Bond in place of LUT; that the LUT was not accepted by the competent authority; that in some cases, there were discrepancies in details of ER-1 returns and impugned AREs-1 and also that goods were exported neither by following self-sealing procedure nor by examination of goods under Central Excise supervision. Penalty was also imposed upon applicant company, their M.Ds. and authorized signatory. Commissioner (Appeals) upheld impugned order-in-original. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 9. Government notes that lower authority has confirmed demand of duty on one of the grounds that since the goods were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hant-exporter, the Bond has to be necessarily furnished. However, it is open for the manufacturer to furnish Bond on behalf of the merchant-exporter. In this case, since the goods were exported by the merchant-exporter there is no relaxation from executing Bond and export the goods under LUT. Applicant cleared goods for export without payment of duty but did not execute the bond in prescribed format. He had submitted LUT before sector officer whereas the LUT or bond is to be filed and executed before Assistant Commissioner/Deputy Commissioner of Central Excise. As such applicant violated this substantial condition of Notification No. 42/2001-C.E. (N.T.). 9.2 Further, it is on record that applicant has not clarified the matter to Central Excise authorities. Despite summons dated 14-5-2007, 28-5-2007, 20-6-2007, 12-7-2007, they did not attend the office of Supdt. to tender their statements. This uncooperative attitude on their part indicates that they did have anything to clarify about removal of goods without payment of duty which was in violation of provision of Notification No. 42/2001-C.E. (N.T.). The LUT finally furnished vide their letter dated 4-8-2007 to ACCE was not accep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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