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TMI Blog2009 (4) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... demand or imposing penalty, especially when there is not an iota of evidence indicating diversion of the goods en-route - E/439-440/2008 - A/701-702/2009-WZB/AHD - Dated:- 2-4-2009 - Ms. Archana Wadhwa, Member (J) Shri Mukund Chauhan , C.A. , for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order].- The appellant is a 100% EOU engaged in the manufacture of texturised yarns falling under Chapter 54 of Central Excise Tariff Act. They cleared the said goods under AR-3A No. 163 dt. 2-8-02 under the invoice No. 170 dt. 2-8-02 to M/s. Umaji Overseas, another 100% EOU at Bhivandi. As the duplicate copy of the AR-3A duly endorsed by the Central Excise officers of the consignee's factory showing re-warehousing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Revenue. 5. The authorities below have confirmed the demand on the sole ground that re-warehousing certificate does not stand produced by the consignee. The adjudicating authority relied upon letter dt. 3-10-06 addressed by Assistant Director, DGCEI indicating that AR-3A was not available in the seized record. As against the above, it is the appellant's contention that much prior to the above communication of the Assistant Director, they have addressed a letter dt. 13-8-03 to Deputy Directorate of the Anti Evasion department, requesting them to supply a copy of the relevant AR-3A No. 163, which was seized from the premises of M/s. Umaji Overseas vide Panchnama dt. 7-8-02. No reply was made to the above letter. The appellant's visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question. The details have already been submitted by M/s. Umaji Overseas with Sales Tax Department. All these documents produced by M/s. Umaji Overseas stand rejected by Commissioner (Appeals) as an after thought and by insisting on production of re-warehousing certificate, he has rejected the appellant's claim and has concluded that the goods might have been diverted by them en-route. 7. I find that the issue of production of re-warehousing certificate was examined in detail by Tribunal in case of M/s. National impex v. CCE, Vapi - 2007 (213) E.L.T. 429 (Tri-Ahmd.). The provisions of Rule 20 read with Board's Circular No. 579/16/2001-CX, dt. 26-6-01 were examined and it was observed that the entire procedure required to be follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above contention of the consignee suggesting that such entries are not made in the statutory record maintained by M/s. Umaji Overseas. Further, the transporter has also certified the delivery of the goods at the premises of M/s. Umaji Overseas. Form-H submitted by M/s. Umaji Overseas to its Sales Tax authority also reflects upon the factum receipt of the dispatched goods. These evidences cannot be viewed lightly and rejected as an after thought, as has been done by the Commissioner (Appeals), inasmuch as all of them are contemporaneous in nature. 10. As such, I am of the view that there is enough material on record, to establish the receipt of the goods by the consignee. The provisions of Rule 20 itself provide that in case of non-recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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