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TMI Blog2021 (1) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of remitting the entire matter to the adjudicating authority for the purpose of passing a fresh order, more particularly, being convinced as regards the export of goods - appeal allowed by way of remand. - R/TAX APPEAL NO. 55 of 2020 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020 - - - Dated:- 18-1-2021 - HONOURABLE MR. JUSTICE J.B.PARDIWALA And HONOURABLE MR. JUSTICE ILESH J. VORA MR PRAKASH SHAH, SR.ADVOCATE WITH MR DHAVAL SHAH FOR THE APPELLANT MR JAIMIN A GANDHI FOR THE OPPONENT JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. This Tax Appeal under Section 35G of the Central Excise Act, 1944 (for short, 'the Act 1944') is at the instance of an assessee and is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad, dated 3rd December 2019 passed in the Excise Appeal No.11457 of 2017, by which the Tribunal quashed and set-aside the Order in Original passed by the Commissioner and allowed the appeal by way of remand to the adjudicating authority for the purpose of passing a fresh order. 2. The appellant has proposed the following two questions of law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the present litigation is with respect to the fact, whether actual export had taken place of the goods or not. 7. It is the case of the Revenue that when the goods liable to excise duty came to be exported by the appellant, the appellant was required to follow the procedure for export without payment of duty as prescribed under the Notification No.42/2001-CE (N.T.) dated 26th June 2001, as amended, issued under Rule 19 of the Central Excise Rules, 2002. 8. The adjudicating authority passed the Order in Original dated 30th March 2017 confirming the demand of the Central Excise duty and also imposing penalty. The operative part of the Order in Original reads thus : ORDER (i) I confirm demand of Central Excise duty of ₹ 2,11,79,188/- (BED ₹ 2,05,62,316/- = Education Cess ₹ 4,11,248/- + H S Education Cess ₹ 2,05,624/-) (Rupees Two Crore Eleven Lakh Seventy Nine Thousand One Hundred Eighty Eight only) Section 11A(1) 11A(4) (applicable during relevant time) of Central Excise Act, 1944. (ii)I order to pay interest, at applicable rate(s) on Central Excise duty determined at (i) above under Section 11AB (for the period upto 07.04.2011) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Order was passed. We find that those documents were not considered while passing the Adjudication Order. Since the veracity of these documents needs to be verified on factual background, which can be done by the Adjudicating Authority. Therefore, in our considered view the matter needs to be remanded to the Adjudicating Authority, having expressed our view to remand the matter, We make it clear that even though the appellant have not followed the procedure prescribed under Notification No.42/2001-CE (NT) but on the basis of all the C/TAXAP/55/2020 JUDGMENT evidences and documents if it is established that the goods have been exported, demand of Excise Duty on export clearances will not sustain. The issue of limitation is also kept open. 8. We thus set aside the impugned Order and allow the appeal by way of remand to the Adjudicating Authority for passing a fresh order. 10. The plain reading of the aforesaid order passed by the appellate tribunal would indicate that the appellate tribunal disagreed with the finding recorded by the adjudicating authority that the appellant had not followed the procedure prescribed under the Notification No.42/2001-CE(N.T.) referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follow ARE-1 procedure. (iii) the unit was audited in December-2011 and fact of exporting readymade garments by them was never in dispute. (iv) the goods have actually been exported and All Industry Rate of Duty Drawback has also been claimed from Nahva Sheva Customs. In this context, it is requested to verify : (i) whether they were eligible to avail the benefit extended vide Circular No.705/21/2003-CX dated 8.4.2003 and Circular F.No.609/162/2002-DBK dated 14.11.2003. (ii) whether they have followed and fulfilled the conditions of Circular No.705/21/2003-CX dated 8.4.2003 and Circular F.No.609/162/2002-DBK dated 14.11.2003. (iii) whether the goods in question have been exported or otherwise. (iv)Provide a copy of said Audit Report. It is therefore, requested to verify the genuineness of the claim and submit your reply within a week. 15. The Superintendent replied vide letter dated 31 st January 2017 as under : To, The Deputy Commissioner, Central Excise, Customs S.Tax, Division - Service Tax, Valsad. Sir, Sub: SCN F.No.V(Ch.20 21)15-56/Dem/14-15 dated 20.1.2016 for the period from March 11 to Feb. 13 issued to M/s.Cebon A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that as such he has no doubt as regards the genuineness of the report of the Superintendent but, at the same time, he insisted that let such report be looked into by the adjudicating authority as directed by the appellate tribunal. 18. We are of the view that the appellate tribunal, on its own, could have looked into the report instead of remitting the entire matter to the adjudicating authority for the purpose of passing a fresh order, more particularly, being convinced as regards the export of goods. 19. In such circumstances referred to above, we are of the view that the remand of the matter would be an empty formality, more particularly, when there is evidence on record in the form of the report of the Superintendent that the export of goods had actually taken place. 20. In the result, this Appeal succeeds and is hereby allowed. The impugned order passed by the appellate tribunal to the extent it remitted the matter to the adjudicating authority, is quashed and set-aside. Rest of the order passed by the appellate tribunal stands affirmed. The two substantial questions of law are answered accordingly in favour of the appellant-assessee and against the Revenue. ..... 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