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TMI Blog2008 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order per: B.S.V. Murthy, Member (T)]. - M/s. Dadri Inorganics Pvt. Ltd. (DIPL) filed 4 shipping bills on 29-5-2000 for export of 'Heat Resistant Rubber Tape' which was taken up for investigation by the Revenue. On completion of investigation and adjudication process, the Commissioner of Customs, concluded that - (i) The description of the goods in the drawback shipping bills filed by the party was "heat resistant rubber tape." whereas the description in the drawback schedule was "Heat Resistant Rubber Tension Tape (strip rubber elastic)"; (ii) The supporting manufacturer who had removed the goods under AR-4 M/s. Ratan Lila and Co. (hereinafter referred to as RALCO) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product exported by them as per the description given in the shipping bills itself does not support the claim for drawback. The description given in the shipping bills is "heat resistant rubber tape"; (ix) The Chemical examiner who examined the sample confirmed the description that the product is "heat resistant rubber tape"; (x) Heat resistant rubber tape (strip rubber elastic) and heat resistant rubber tape both have distinct use and characteristics. The use of the word 'elastic' in the AR-4 was made to give an impression to the officers that both tapes are same. However, in the shipping bills, the description of the goods was "heat resistant rubber tape" only; (xi) The bank realization certificates were not submitted in time by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s- declaration on the part of M/s. DIPL in the shipping bills and whether they are eligible for the drawback and whether penalty is imposable on the parties and whether supporting manufacturer existed or not. 4. Heard both sides. 5. The learned Advocate drew our attention to the Chemical Examiner's report which reads as under: "The sample is in the form of black coloured strips. It is composed of compounded synthetic rubber. The sample retains its physical property i.e. elongation under fixed force at a temperature of 100°C - a criterion for dry heat resistance and hence may be considered heat resistant rubber tape." 6. According to the learned Advocate, this would mean that the rubber tape elongates under heat and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration certificate. The registration certificate also shows that RALCO had shifted the premises again in 2000. Summing up, according to the records, RALCO functioned from three premises, first up to 1999, second to somewhere in September 2000 and third thereafter. In any case, the facts which are not in dispute are that RALCO had filed a declaration under Rule 173B of the Central Excise Rules, 1944 where they declared that they manufacture heat resistant elastic tape. They had also listed raw materials against the manufacturing process and mentioned "paned" through extruders. However, according to the records, available with the department, RALCO had furnished the details of machinery installed on 24-12-1996 and the list contained bott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he RALCO had shifted the premises just a few months back. Going by the statements of the persons involved and records, the preponderance of probability is that the said items were not manufactured but purchased and supplied as concluded by the original adjudicating authority even though he had not recorded a detailed findings in support of his conclusion. 9. The Commissioner has held that 18,000 kgs. of heat resistant rubber tape exported by the appellants are liable to confiscation but has refrained from imposing fine in lieu of confiscation and has stated that he will take the same into consideration at the time of imposing penalty. However, we find that in this case, the description of the goods given in the shipping bills tallies wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, no limitation in terms of time-limit has been laid down, the order relating to this portion has to be held valid. As regards the penalty, it is quite clear that M/s. DIPL, Shri V.M. Jain, Director and Shri C.P. Gupta, Director of M/s. RALCO being involved in the fraud to show that the goods have been manufactured by RALCO when they were not so manufactured and have filed false documents like AR-4, invoices, etc.; they have also given false information by claiming that the goods were manufactured in a factory and exported goods which were purchased in the open market; thus they have claimed central excise portion wrongly. Since the description does not tally with the Drawback schedule, verification was taken up. It is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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