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TMI Blog2017 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... orms were attested by customs authorities for the export of the goods. Just because appellant has lodged F.I.R for the short receipt of the goods by their clients in USA, would not mean that the goods were diverted to DTA and duty can be demanded - the factual matrix the containers have been cleared for export and the proof of export has been accepted and admitted by the jurisdictional Asst. / Deputy Commissioner is not disputed - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... export which has not been disputed. He would submit that since they received a complaint from the overseas parties they filed a F.I.R and claimed insurance. Filing F.I.R and claiming does not mean that the goods were cleared for export but diverted locally and the goods were not exported. He would rely upon the decision of the Tribunal in the case of CCE v. Sree Narasimha Textils Ltd. - 2009 (239) ELT 86 (Tri. Chennai) for the proposition that once the goods on examination and cleared for export by Customs authorities who had admitted the proof of export, department cannot raise claim for duty on the ground that the goods have not been exported. He also relied upon the Larger Bench's decision of the Tribunal in the case of Honest Bio-Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual position of the matter, inasmuch as four containers which were cleared during the period 13.09.2006 to 04.10.2006 were stuffed in the presence of Central Excise officials at the factory by appellant and the said Central Excise officials had sealed the containers and recorded the same in documents like ARE1; the containers were transported to port and the customs authorities after examining the seals allowed the containers to be loaded and granted LET export order; on inspection of the containers received in USA by appellant's customers it was noticed that there was a shortage which was informed to appellant, who subsequently lodged a F.I.R and claimed insurance from the Insurance Company. It is the case of Revenue that such short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d within six months, manufacturer will be liable to pay duty that there is non-submission of proof of export. In the case in hand, the factual matrix the containers have been cleared for export and the proof of export has been accepted and admitted by the jurisdictional Asst. / Deputy Commissioner is not disputed. The ratio of the Division Bench's decision and the Larger Bench decision is binding on me. 5.2 As regards the case laws cited by learned D.R. I find that there is Commissioner's finding that the goods meant for export were diverted and sold in the local market; and the assessee therein had admitted and accepted the diversion of goods to home consumption while in the case in hand the facts are totally different. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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