M/S. Aegis Ampoules And Vials Ltd vs Commissioner, Central Excise, ...

[Arising out of Order-in-Appeal No. AV(29) 07/2014 dtd. 06/02/2014 passed by the Commissioner (Appeals) Central Excise & Customs, Aurangabad]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. Aegis Ampoules and Vials Ltd. : Appellants

VS

Commissioner, Central Excise, Aurangabad : Respondent

Appearance

Shri. Pinky Sharma, Consultant for the Appellants Shri. Ashutosh Nath, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 25/2/2015 Date of decision /4/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in-Appeal No. AV(29) 07/2014 dtd. 06/02/2014 passed by the Commissioner (Appeals) Central Excise & Customs, Aurangabad, wherein the appeal of the appellant was rejected. The fact of the case is that during the period Apr 2012- Jun 2012 the appellant have cleared the goods to 100% EOU against CT-3 certificate and goods cleared for export under UT-1 without payment of duty. Revenue has issued a show cause notice No. 05/C. EX./AC/DIV-II/2013 dated 5/4/2013 wherein demand of Rs. 4,66,129/- was raised in respect of clearances made to 100% EOU as well as export to foreign country, on the allegations that they failed to produce any evidence/documents to substantiate their claim that value shown in the ARE-1 return for the period of Apr-Jan 2012 is of export. It was also contended that the appellant has not produced any proof of export. During the investigations appellant have submitted copies of shipping bills, ARE-1 as proof of export in respect of goods exported out of country and also submitted re-warehousing certificate in respect of deemed export made to M/s. Sun Pharma,100% EOU. They also got UT-1 renewed to cover up the physical export made out of India. In the adjudication, the adjudicating authority has confirmed the demand of Rs. 4,66,129/- imposed penalty and interest. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals) who dropped the demand pertains to ARE-1 No. 3 dated 21/6/2012 and upheld the demand in respect of remaining clearances, therefore the appellant is before me.

2. Ms. Pincky Sharma, Ld. Consultant for the appellant submits that appellant have admittedly cleared the goods for export as well as for deemed export which is not under dispute, the only lapse on the part of the appellant is that they could not submit the proof of export/re-warehousing certificate against such export/deemed export clearances. She submits that all the documents have been submitted before the adjudicating authority on the basis of which the fact that the goods have been exported is clearly established. She fairly admitted that there is delay in filing the bill of export/ re-warehousing certificate however export of goods is not under dispute. As regard the re-warehousing certificate against the deemed export, there is no dispute about the submission of such re-warehousing certificate but the only lapse is that the said certificate was not submitted within the time limit of 90 days. In this regard she submits that in respect of consignee M/s. Sun Pharma in re-warehousing certificate there was no signatures of Jurisdiction Central Excise Authorities. She submits that regarding non signing of the Annexure A Jurisdictional Excise authority observed in the order-in-original the same was subsequently got signed by the Central Excise, officer in-charge of EOU. The same were produced before the Commissioner(Appeals). It is her submission that re-warehousing certificate was very much available and submitted before the adjudicating authority but only because the same were not signed by Jurisdictional Central excise authority but said deficiency subsequently corrected. Therefore lapse is of technical nature and for this reason demand cannot be confirmed. As regard demand of Rs. 38,732/- related to the export of goods, she submits that there is no dispute about actual export of the goods that the issue is of non submission of proof of export within the time limit of six months. It is her submission that as regard physical export of the goods outside India, the proof of export has been submitted, therefore it is not the case where goods have not been exported but there is only delay in filing the proof of export.

3. On the other hand, Shri. Ashutosh Nath, Ld. Asst. Commissioner (A.R.) raised preliminary objection that the present case involved demand in two parts i.e. 1) demand of Rs. 43,810/- related to clearance of goods to 100% EOU and 2) demand of Rs. 38,732/- in respect of clearance of goods outside India. It is his submission that the issue relates to demand of Rs. 38,732/- towards the export of goods out side India, the appeal does not lie before this Tribunal in terms of Section 35B(i) (b) read with clause c of proviso 2 to the said Section, therefore this Tribunal has no jurisdiction to entertain the appeal related to the aforesaid portion of the order. As regard other issue i.e. demand of Rs. 43,810/- on clearance of goods made to 100% EOU, he reiterates the findings of the impugned order. He further submits that since the appellant did not submit re-warehousing certificate within the stipulated time period of 90 days the demand was rightly confirmed by the Adjudicating authority and upheld by the Ld. Commissioner(Appeals).

4. I have carefully considered the submissions made by both the sides and perused the record.

5. On going through the Section 35 B and proviso thereto, I find that as regard the demand of Rs. 38,732/- in respect of export of goods outside India this Tribunal has no jurisdiction to decide the appeal. Therefore I refrain from passing any order in respect of demand of Rs. 38,732/- on export of goods outside India. I therefore take up the appeal only to the extent whether demand of Rs. 43,810/- on the clearance of the goods to 100% EOU. From the facts of the case, it is observed that against clearance of the goods to 100% EOU i.e. M/s. Sun Pharma, appellant were in the possession of re-warehousing certificate, the same was signed by the authorized signatory of the EOU but same was not signed by the Jurisdictional Central Excise Officer of 100% EOU. This was observed in the order-in-original. The appellant subsequently obtained the signature of the jurisdictional officer of the 100% EOU and produced re-warehousing certificate before the Commissioner (Appeals). In such circumstances I do not find any reason for not accepting the re-warehousing certificate by the Commissioner (Appeals). There is no case of the Revenue that the goods cleared to 100% EOU were not supplied to 100% EOU and re-warehoused the same in the 100% EOU. The only dispute was non submission of re-warehousing certificate. In my view it is minor procedural lapse particularly in the case where supply and receipt of goods to 100% EOU is not under dispute. In my considered view goods have been received by 100% EOU and subsequently re-warehousing certificate has been submitted, merely because re-warehousing certificate not submitted in time the demand of duty can not be raised.

5.1 I therefore drop the demand of Rs. 43,810/- towards the goods supplied to 100% EOU. As regard demand of Rs. 38732/- towards export of goods outside India this Tribunal has no jurisdiction to pass any order on such part of demand. Therefore I refrain from passing any order in respect of said part of the demand. However, the appellant is at liberty to file revision application before the Reversionary authority of Government of India, which in my view, is right forum for such nature of cases. Appeal is disposed of in above terms.

(Operative part pronounce in court on /4/2015)

Ramesh Nair Member (Judicial) sk

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