9911796707
TMI Blog2016 (8) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... APEDA has approved the unit as integrated Abattoir. The appellant exports 100% of the products and is entitled to the duty drawback in terms of Section 75 of the Customs Act read with the Customs, Central Excise Duties and Service Tax Drawback Rules 1995 and further vide circular No,42/2011 - Cus read with standard input output norms of export of products in respect of frozen meat packed and in packing of LDPE/HDPE/PB granules, Kraft paper and cardboard other than laminated board, all industries rate have been prescribed for drawback and the rate of 2% of F.O.B value for the year 2011-12, which was subsequently amended with effect from 10/10/12 to 1.6% of F.O.B value. Pursuant to enquiry made by the Revenue, the show cause notice dated 11/7/2014 was issued alleging the following: - (a) The appellant/exporter have made excess export of 17625.465 MT of Buffalo Meat produced/procured in contravention of APEDA conditions and Chapter Note-6 of Chapter 2 of Schedule 2 of ITC (HS) Classification of Export and Import terms issued under Section 5 of Foreign Trade (D&R) Act, 1992 and such exports are prohibited under Section 11 of Foreign Trade (D&R) Act, 1992; (b) The appellant/exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meat processing plants is renewed every year after a detailed plant inspection by the committee. According to the current Export and Import Policy of the Government of India, each export consignment is subjected to compulsory microbiological and other tests and a comprehensive pre-shipment inspection certificate is issued by the State Government Veterinarian. Each export consignment is accompanied by the Animal Health Certificate. This certificate also states that meat has been obtained from healthy, disease free livestock, which are free from contagious and infectious disease, including foot and mouth disease and other diseases. The Health Certificate also confirms that the livestock have been subjected to ante-mortem inspection followed by post-mortem examination and that the meat is fit for human consumption, besides having the services of highly qualified and experienced veterinarians, microbiologists etc. Employed by the exporting units. 3.2 Part-2 of The ITC (HS) Classifications of Export & Import items contains schedule-2 of the Export policy deals with classification of Export products. The "goods" are classifiable in Chapter 2 of Schedule 2 of ITC (HS). The Chapter Notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by the exporter for fulfilment of Condition stipulated at Note 6 that meat and/or raw material are sourced/obtained from an APEDA registered integrated abattoir or from APEDA registered meat processing plant. 3.5 The inferences drawn by the DRI are as under: (i)That the appellant had procured the excess buffalo from other Sources (not APEDA approved) ; (ii) That the appellant has slaughtered more than 500 buffaloes in their abattoir per day ; (iii) That the appellant have exported 34080 MT. of Frozen Buffalo Boneless meat during the period from 15.06.2012 to 31.03.2013, which is more than their capacity and thus quantity of 17625.465 MT. of Frozen Boneless Buffalo Meat was exported in excess of the maximum production capacity which included 2532 MT produced from unauthorized slaughtering and 15093.465 MT. Exported in excess of maximum production capacity: (iv)The appellant thus availed inadmissible export incentive in the form of Drawback which was recoverable under Rule 16 of the Drawback rules. (v)The appellant wrongly declared in the Shipping Bill filed under Section 50(2) of the Customs Act. 4. The SCN was adjudicated ordering confiscation of 17625.465 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Foreign Exchange Management Act, 1999 (42 of 1999)] 5.3 None of the allegations made in the SCN specify that any of the aforesaid conditions have been violated. Thus the appellant has fulfilled all the conditions for grant of Drawback under Section 75 of the Act. Violation of any of the condition of Section 75 of the Act is sine qua non for applying Rule 16 of the Drawback Rule for recovery of drawback already paid to the appellant. As may be seen, Rule 16/16A of the Drawback Rule provides certain reasons for recovery of drawback. These are (i) Where an amount of drawback and interest, if any, has been paid erroneously; (ii)where the amount so paid is in excess of what the claimant is entitled to, (iii) Where an amount of drawback has been paid to an exporter or a person authorised by him but the sate proceeds in respect of such export goods have not been realised by or on behalf of the exporter in India within the period allowed under [the Foreign Exchange Management Act, (42 of 1999)], including any extension of such period. 5.4 In the instant case, although the allegation is that the drawback was paid erroneously, however' the SCN does not give any reason as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are all in favor of the appellant. The appellant had all certificates at the time of export in terms of conditions mentioned in Para 5 (supra) of this submission which showed that the buffaloes were slaughtered and processed in the premises of the appellant. This is proved by the certificate of the Veterinary Doctors, both employed by the appellant as well as the doctor Designated by the State Government, UP which certifies that all the animals were inspected before and after being slaughtered and all the meat was inspected and tested after production. The said certificate was produced at the time of export as per the requirement of the Export Policy, as mentioned herein before. No objection was raised at the time of export by any agency who had allowed export of the goods 5.5 (iv) So far the number of buffaloes to be slaughtered mentioned in the Certificate is concerned, it is submitted that appellant had applied to Uttar Pradesh Pollution Control Board (here-in-after refer to as UPPCB), Lucknow for amendment in the number of buffaloes to be slaughtered per day from 500 to 1000 per day vide their application No. AHAF/2011/94 dated 26.09.2011/03.10.2011. The Regional Officer, Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption. Incidentally, mis-declaration is not a ground in the SCN for holding the goods liable to confiscation. This itself shows the inadequacy evidence with the Revenue for mis-declaration. Hence, the charge of mis-declaration is frivolous and not sustainable. 5.7 It is alleged in the SCN that the appellant has violated Section 11 of the FTDR Act, 1992 and therefore the exported goods are prohibited and liable to confiscation under Section 113 (d) of the Act (Section 11 of the FTDR Act, 1992 has been quoted earlier). According to sub-section (1) of Section 11 of FTDR Act, 1992 "No export or import shall be made by any person except in accordance with the provisions of this Act, the rules and orders made thereunder and the export and import policy for the time being in force." For reaching at this allegation, the reasoning of the department are:- 5.8 It is submitted that registration of abattoirs and meat processing plants is carried out by the Agricultural and Processed Food Products Export Development Authority (APEDA). Inspection of the meat processing plants is carried out by a Committee of experts as per the standards laid down in the Meat and Meat Products Order (1973) & Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m-Meat Processing Plant duly approved and registered by/ with APEDA. The basic principle of adversary judicial System that the person who alleges has to prove the charges with evidence, has been ignored by the Revenue. The allegations based on presumption, cannot be sustained. 5.11 Note 6 of The Export Import Policy warranted that exporter is to fulfil the condition by attaching copy of valid APEDA registration certificate with each Shipping Bill and also to submit declaration each Shipping Bill/Consignment stating that:- (a) the items exported have been obtained/sourced from an APEDA registered integrated abattoir or from APEDA registered meat processing plant; and (b) the raw material, means Carcasses, have been sourced exclusively from APEDA registered integrated abattoir/abattoir. A careful look at the wordings used in the said conditions indicate that the conditions mentioned at (a) above, part of Note 6 to Chapter 2 of Schedule 2 to ITC(HS) is for merchant exporter B It is not disputed that appellant has their own integrated Abattoir-Cum-Meat Processing Plant duly approved and registered with APEDA and thus they did not obtain/source either finished items or raw/p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Shri Baqar Abid categorically stated that they do not purchase any meat from outside and whatever they pack for export is slaughtered in their own slaughter house. It is alleged in Para 14 of the SCN that the appellant had exported a quantity of 17625.465 MT of Frozen Boneless Buffalo Meat in excess of the maximum production capacity which also includes the quantity of 2532 MT produced from unauthorized slaughtering. This allegation is vague without any supporting evidence and based on assumption and presumptions. The department has not produced any evidence as to from where, when and how the quantity of 2532 MT had reached the appellant Abattoir-Cum-Meat Processing Plant. An allegation cannot be leveled without supporting documents and other corroborative evidence and only on the basis of assumptions and presumptions. They have averred in no uncertain terms that all slaughtering of animals/buffaloes, even if more than 500 animals per day, has taken place in their Abattoir-cum-Meat Processing Plant which stand confirmed from the certificates issued by designated authority of State Government for each buffalo slaughtered in their Plant by testing and inspection of buffaloes in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been produced in the factory of appellant. Thus goods are neither Prohibited under Customs Act nor under the Foreign Trade (Development and Regulation) Act, 1992, nor under any other law for the being enforce. The Id. Commissioner has not mentioned the relevant provisions of any Act, Rule, Regulation or .94 Notification issued under any Act which make the goods as prohibited goods. 5.17 Further, in absence of goods being available, the order of confiscation is bad ad fit to be set aside as held by Hon'ble Calcutta High Court in the following case:- Anita International v/s Commissioner of Customs, Calcutta; 1993 (65) ELT 201(CaI). 5.18 Further, the appellants have filed monthly returns with APEDA (the regulatory body) giving details of quantity produced and exported. No objection have ever been raised by APEDA. 6.1 The Id. A.R., Mr D.S. Mann, for the revenue relied on the impugned order passed by the Commissioner. Reiterating the findings, he states that the appellant have apparently exported frozen meat by slaughtering more animals per day than approved in the Certificate granted by APEDA and as such, the appellant have illegitimately exported more quantity of frozen meat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that they had more sanctioned export capacity and hence, they could have slaughtered more animals per day. 6.2 The plea of the appellant is completely untenable that they started to slaughter more animals under the provisions of the deemed consent/NOC under the Pollution Control Law and the same appears to be an afterthought to cope up the excess slaughtering as well as much more quantity of export of boneless buffalo meat, than the sanctioned capacity. Taking the average carcass weight as 208 Kgs and recovery as 66.69%, multipled with the total number of buffaloes 136884 slaughtered during the period 15.6.12 to 31.03.13 the total quantity of boneless meat produced would be 18987 MT, which includes the quantity of 2532 MT produced from 18257 animals slaughtered in excess of the permitted capacity during the period November, 2012 to February, 2013. Therefore, the legitimate quantity available for export during this period would be 16455 MT (18987-2532 MT). As per shipping bill-wise details for the period 15.06.2012 to 31.03.2013, appellant had exported 34080.883 MT of boneless buffalo meat whereas legitimate quantity available for export is calculated at 16455.368 MT. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant have filed monthly online returns with APEDA declaring the quantity and value and the country to which exports were made. It is also an admitted fact that as per the registration certificate of APEDA, the slaughter permission approved was 500 animals or buffaloes per day whereas as per the processing capacity (170 MT per day of boneless buffalo frozen meat), the appellant could have utilized the meat of more than 500 buffaloes in view of its installed capacity. The appellants have also led evidences, being Annexure 22 to the appeal memo, wherein they applied to the Uttar Pradesh Pollution Control Board on 26/9/11 for the enhancement of the slaughtering number of buffaloes along with report on modification in the Environmental Management Plan for the proposed augmentation of the existing meat factory, which was prepared by approved consultant of the Pollution Control Board. In response thereto, the unit of the appellant was inspected by the Pollution Control Authority and vide communication dated 02/11/11 the appellant was directed to comply with certain conditions by the Pollution Control Board and the same was duly complied with under proper intimation dated 9/1/2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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