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TMI Blog2015 (11) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,84,868/-,Rs.78,835/- & Rs. 25,06,568/- under Section 11AC of Central Excise Act, 1944 and equivalent amount of penalties under Section 11AC read with Rule 25 of Central Excise Rules and Rule 15 of the Cenvat Credit Rules, 2004. The second appeal No.E/1058/09 is against the order-in-appeal No.AGS (126)/17/09 dated 25/06/2009 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad, upholding the rejection of refund claim of Rs. 21,59,663/-. 2. The facts are that the appellant manufactures electric motors and generators and exports a substantial portion of the goods to EOUs and through merchant exporters without payment of duty as provided under Rule 19 of the Central Excise Rules, 2002. The period of dispute is from 11/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls). The Commissioner (Appeals) observed that the test check of some ARE-1's showed that proof of export was not submitted in respect of 10 ARE-1s involving duty of Rs. 1,00,134/-. The test check was done without informing the appellant. In any case, the 10 ARE-1 forms are actually relevant to the deemed export to the EOUs. Having submitted the proof of export they are not required to pay interest and penalty. Further, instead of refunding the amount for which they have produced the proof of export for consignments involving duty of Rs. 21,59,663/-, the adjudicating authority rejected the refund claim on the ground of time bar which is upheld by the Commissioner (Appeals) and is the subject matter of appeal No.E/1058/09. The learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 obliges the consigner to follow the procedure under Rule 11 & 20 and the user industry to follow the procedure contained in Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. Circular No.579/16/2001-CX dated 26/06/2001 has been issued which puts the responsibility on the consigner if the warehousing certificate is not received within 90 days of the removal. While referring to the Circular it was contended that once the goods are removed from the factory for export and if the goods are diverted the responsibility of payment lies on the warehouse in terms of Rule 20 (3). 6. We have carefully considered the submissions of both sides. 7. On the first issue of non-production of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Even in the matter of penalty, the judgements in the case of Jay Jagdish Sugar (supra) and Shagun Processors (supra) hold that the responsibility rests on the merchant exporter. 7.1 The next issue is regarding non-receipt of re-warehousing certificates. The revenue has not been able to explain how Rule 20 (3) is not applicable. Rule 20 (3) states that the responsibility for payment of duty on the goods that are removed from the factory of production to a warehouse or from one warehouse to other warehouse shall be on the consignee. Even if Rule 20 (4) which casts the responsibility upon the consigner is considered it is for the Revenue to seek documents from the Superintendent in charge of the consignee as laid down in Board Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur observations above. We do find that amounts were got debited without even caring to consider the proof of exports submitted by the appellant in their letters dated 21/05/2006, 31/01/2007, 21/06/2007 & 25/10/2007. Revenue without considering these letters went ahead and issued a show-cause notice on 14/05/2008 after compelling the appellant to debit the amount of Rs. 25,06,568/- vide Cenvat Credit Entry No.282 dated 15/02/2007. This is total travesty of justice and needs to be rectified by the Revenue. The time limitation for determining the refund will start from the date of finalisation of the issue of demand of duty. Further, the fact that the proof of export was available to the department before issue of show-cause notice means that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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