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TMI Blog2023 (8) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... y shown the delivery term as Ex-factory - It is also found that the appellant has contended that they had followed the procedure as laid down in law for clearances of goods to M/s Neeraj Exim and department has not disputed on the genuineness of CT-3 certificate issued by the department and re-warehousing certificate issued by the Jurisdictional officer of M/s Neeraj Exim - it is found that this aspect has not been considered by the Ld. Commissioner in the present matter. Since the department has made the allegation of non-re-warehousing of the goods at the consignee s end, it has to prove the same by substantial evidence and it cannot be made on assumption. It has to be shown as if the goods were not warehoused then where were the same div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Central Excise, Customs Service Tax, Surat-I. The Appeal No. E/11640/2013 is against duty demand and penalty imposed upon Appellant whereas the Customs Appeal No. C/11630/2013 is against the confiscation of goods and imposition of fine. 2. The brief facts of the case are that the appellant is a 100% EOU engaged in manufacture of Polyester grey fabrics falling under Chapter 54 of Schedule to the Central Excise Tariff Act,1985. A detailed show cause notice dated. 13.02.2008 was issued to the Appellant, Arvind D. Patil, Proprietor and M/s Neeraj Exim Pvt. Ltd., Kolkata alleging that Appellant had in the guise of making deemed exports to another EOU M/s Neeraj had diverted the goods and created fictitious clearance documents t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not the case of the department that the procedures and conditions as provided under Notification No. 1/95-CE dated 04.01.1995, Chapter 10 of supplementary instruction issued by the CBEC and Rule 20 of the Central Excise Rules, 2002 were not followed by the appellant. The Appellant complied with all the conditions of the Rules and Regulations and therefore demand is not sustainable. As per terms of the contract, the appellant have cleared goods to M/s Neeraj Exim against Form CT-3 at ex-factory and received payment towards it. Since it is not in dispute about genuineness of CT-3 form, warehousing certificate and payment, the duty demand is not sustainable against the appellant. He placed reliance on the following judgments. (i) Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Vs, Sanjari Twisters 2009 (235) ELT 116 (T) affirmed by Supreme Court 2010 (255) ELT A15 (SC) (iii) Sarla Polyester Ltd. Vs. CCE 2008(222) ELT 376 (T) 7. Shri Kalpesh P. Shah Learned Superintendent (AR) appearing for the Revenue supports the findings of the Ld. Commissioner in the impugned order. 8. Heard both the sides and perused the records. We find that the case of the department against the appellant is that Grey Fabrics sold to M/s Neeraj Exim Pvt. Ltd. were diverted into Domestic Tariff Area (DTA) in guise of clearance to the said EOU unit of West Bengal and failed to get the goods re-warehoused at the said EOU. The Ld. Commissioner by relying the report of Commercial Tax Department, West Bengal confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate are false or manipulated. He has not verified the correctness of said certificates. 9. We also find that on the one hand the Revenue has made demand of central excise duty on goods consumed in the finished goods and on the other hand it is demanding duty on the finished goods which is wrong. Even if there is any duty demand, the same shall be restricted only upon finished goods. The raw material duty cannot be demanded as the same were consumed for intended purpose of manufacture. This aspect also not properly considered by the learned Commissioner. 10. We also observed that the appellant have relied upon various judgments on the identical issue which Adjudicating Authority had no occasion to consider. Needless to say that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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