9911796707
TMI Blog2022 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944 and Rules made thereunder. Petitioner was holding a valid Central Excise Registration bearing No. AAHFM 4869 QXD001 issued by the jurisdictional Central Excise Authority. 4. During its course of business, petitioner had purchased four consignments of cotton / polyester fabrics (subject matter of this petition) from the manufacturers against Form CT-1 and ARE-1's for export. The details of the four consignments are as under : Sr. No. CT-1 ARE-1 No. & Date Amount of C.Ex. Duty Manufacturer Description 1 52/02-03 7/1.6.02 20,915/- Tata Mills Cotton fabrics 2 53/02-03 9/1.6.02 83,017/- Tata Mills Cotton fabrics 3 54/02-03 8/4.6.02 20,124/- Ridham Cotton fabrics Synthetics 4 55/02-03 81/5.6.02 32,844/- Sharda Polyester / Synthetics Viscose fabrics 5. Thereafter, petitioner filed three shipping bills for export of the above referred goods through Jawaharlal Nehru Port, Nhava Sheva. The details of the three shipping bills are as under: Sr. No. Shipping Bill No. ARE-1 FOB Value 1 815844/4.6.02 7&9/1.06.02 2,99,631/- 2 815619/3.6.02 8/4.6.02 5,81,208/- 3 816256/4.6.02 81/5.6.02 2,63,276/- 6. The goods covered by the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication order dated 16th March 2005 against petitioner was passed. Petitioner impugned the said order by preferring an appeal before the Commissioner of Central Excise (Appeals), Mumbai. The appeal came to be rejected by an order dated 16th November, 2005. Petitioner filed an appeal before respondent no.2 as provided under Section 35EE of the Central Excise Act, 1944, which appeal also came to be rejected by an order dated 17th October, 2006 that is impugned in this petition. Petitioner is also seeking a writ to direct respondents to issue the certificate for remission of duty. 9. Section 3 of the Central Excise Act 1944 (Excise Act) provides for levy and collection of a duty of excise on all excisable goods (excluding goods procured or manufactured in Special Economic Zone), which are produced and manufactured in India. 10. Rule 19 of the Central Excise No.2 Rules 2001 which was published vide Notification No.30/2001 - Central Excise (NT) dated 21st June, 2001 provides that any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or warehouse or any other premises, as may be approved by the Commissioner. It also pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in fire. The conditions and procedure read as under : "1. Conditions : (i) that the exporter shall furnish a general bond in the Form specified in Annexure-I to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory, warehouse or such approved premises, as the case may be, or the Maritime Commissioner or such other officer as authorised by the Board on this behalf in a sum equal at least to the duty chargeable on the goods, with such surety or sufficient security, as such officers may approve for the due arrival thereof at the place of export and their export therefrom under Customs or as the case may be postal supervision. The manufacturer-exporter may furnish a letter of undertaking in the Form specified in Annexure-II in lieu of a bond. (ii) that goods shall be exported within six months from the date on which these were cleared for export from the factory of the production or the manufacture or warehouse or other approved premises within such extended period as the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or Maritime Commissioner may in any particular case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs or other duly appointed officer shall examine the goods with the particulars as specified in the application and if he finds that the same are correct and exportable in accordance with the laws for the time being in force, shall allow export thereof and certify on the copies of the application that the goods have been duly exported citing the shipping bill number and date and other particulars of export; Provided that if the Superintendent or Inspector of Central Excise sealed packages or container at the place of despatch, the officer of customs shall inspect the packages or container with reference to declarations in the application to satisfy himself about the exportability thereof and if the seals are found intact, he shall allow export. (c) The Commissioner of Customs or the other duly appointed officer shall return the original and quadruplicate (optional copy for exporter) copies of application to the exporter and forward the duplicate copy of application either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the application, with whom the exporter has furnished bond or a letter of undertaking. (d) The expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een substituted. Provided further that where such duty exceeds two thousand five hundred rupees but does not exceed five thousand rupees, the provisions of this rule shall have effect as if for the expression "Commissioner", the expression "Joint Commissioner of Central Excise or Additional Commissioner of Central Excise, as the case may be," has been substituted. (emphasis supplied) 13. Therefore, where it is shown to the satisfaction of the Commissioner that goods have been lost or destroyed by natural causes or by unavoidable accident or claimed by manufacturer as unfit for consumption or for marketing, at any time before removal, he may remit the duty payable on such goods, subject to such conditions as may be imposed by him by order in writing. The admitted position is that goods in this case have been destroyed by fire and it is not respondent's case that the destruction has happened not by an unavoidable accident. The respondent's only case as stated in the impugned order (paragraph 6.3) is that goods did not get destroyed before removal. Para 6.3 reads as under : "6.3. Govt. further notes that the applicants have not produced any remission certificate in terms of rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant is whether the goods got destroyed before it was removed. According to respondent no.2, there is no provision in Central Excise Rules for remission of duty in case goods are lost or destroyed after clearance from manufacturing place or warehouse. What is a warehouse we have to see. Since the condition of the general bond also states that the exporter shall ensure that the goods arrived at the place of export, CWC CFS should also be considered to be the 'warehouse' as prescribed under the Rules. Moreover, the procedure prescribed under the Notification also says that the general bond or letter of undertaking shall not be discharged unless the goods are duly exported to the satisfaction of the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or otherwise accounted for to the satisfaction of such officer. There is no discussion in the impugned order as to how the goods have not been accounted for, when admittedly goods have been lost in fire within the custom notified area and under customs supervision after Let Export Order has been issued. The bond cannot be discharged only for goods not accounted for and in this case, in our view, the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and of course that happened within the place of manufacturer but the said judgment is not an authority to assert that loss ought to happen only in the premises of the manufacturer. In fact, in the said judgment the Court went on to suggest that practical view of things is required to be taken and in the absence of anything to show any clandestine removal, a reasonable approach has to be taken. In our view, this judgment actually would be to the benefit of appellant. 19. There was nothing to prevent the Central legislation from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to that afterwards whether it will be consumed, destroyed or given away. That is not the case. Excise duty is collected when the commodity leaves the factory for the first time and also because the duty is intended to be an indirect duty, which the manufacturer or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example upon destroyed in the factory itself. It is for that reason, the Act and the Rules framed thereunder provide for satisfactorily accounting for, in case the goods are not exported etc. and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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