Surya Exports vs Commissioner Of Central Excise

[Arising out of Order-in-Appeal No.9/2005 (TRY) (ADK) dated 20.1.2005 passed by the Commissioner of Customs & Central Excise (Appeals), Trichy]

Surya Exports Appellant

Versus

Commissioner of Central Excise, Chennai Respondent

Appearance:

None For the Appellant Shri K.P. Muralidharan, AC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing/decision :23.3.2015

FINAL ORDER No.40333/2015

This an appeal filed by appellant against Order-in-Appeal No.9/2005-(TRY) (ADK) dt. 20.1.2005.

2. The appeal was listed for hearing on 1.11.2013, 3.1.2014 and again on 13.6.2014. On 13.6.2014, the matter was adjourned as a last chance. In spite of that, none appeared today or is there any application for adjournment. Since appellant is not interested to pursue the appeal, the appeal is taken up on merits based on records.

3. Ld. AR reiterates the adjudication order and the appellate order where both the authorities disallowed the refund claim on the ground that appellants have not produced proper evidence to substantiate their claim. It was clearly brought out in para-4 of the OIA which is reproduced as under :-

"The issue here is whether M/s.Surya Exports are eligible for refund or not. The allegations here are that the appellants are unable to produce original documents but only the photocopies of the documents. The dates in the invoices of the merchant exporter precede the dates mentioned in the manufacturers invoices as mentioned in the impugned order. In some cases, the description of the goods and code No. mentioned in the manufacturers' invoices were not tallying with the exporters' invoices. The goods were removed on the strength of the consignment note which is not a excise document for the purpose of excisable goods from the factory. Even if goods are cleared by consignment notes, then it should be supported with the delivery challans of the manufacturer in support of the details of the goods namely description and quantity of the goods cleared to the exporter. But the appellants have not produced copy of the delivery challan or commercial invoices that was accompanied the goods at the time of delivery along with the goods consignment note. Hence the refund claim cannot be sanctioned on the strength of the consignment note but only as per the invoice prepared under Rule 11 of CER 2002. I find that in 13 invoices as mentioned in the impugned order, the exporter's invoice, shipping bills and let export orders were pre-dated to the date of manufacturer's invoice. The manufacturer of excisable goods are removing goods under rule 11 of CER 2002 and the date mentioned in the invoices by the manufacturer is relevant. The dates in the invoices of the merchant exporter precedes the dates mentioned in the manufacturers invoices and the date of the shipping bill and the date of let export in the shipping bill are not correlating with the date of the manufacturer's invoices. This will lead to the natural conclusion that the goods exported were not relevant to the goods cleared by the manufacturer. Moreover there is variation in the description and code number of the goods mentioned in the manufacturer's invoices and the exporter's invoice in some cases So, the lower authority after examining all these points had rightly rejected their claim for refund Hence the rejection of refund claim by the lower authority is correct in law and therefore it is to be upheld."

The appellants have not produced the original documents neither before the adjudicating authority nor before the appellate authority. It was found that description of the goods mentioned in the invoices were not tallying with the exporter's invoices and also the goods removed on the strength of consignment notes and not by excise invoices. It is also brought out in the appellate order that let export orders were pre-dated to the date of manufacturer's invoice. I find that in appellant's own case on the identical issue, this Tribunal rejected the appeal as reported in 2007 (209) ELT 235 (Tri.-Chennai). The relevant para-2 of the said order is reproduced as under :-

"2.?Heard learned counsel for the appellants and learned SDR for the Revenue. Learned counsel has not produced the documents referred to in Section 12A of the Central Excise Act or any other documents to support the refund claim filed under Section 11B. In the absence of the original or duplicate copies of the manufacturers invoices, it cannot be said that there is a conclusive evidence of payment of duty of excise on the subject goods. Further, the pre-dated invoices produced by the appellants and alleged to have been used for export of the goods can hardly be accepted as evidence of the incidence of duty on the goods having not passed on to the foreign buyer inasmuch as the goods covered by the pre-dated invoices of the exporter cannot be held to be the same as the goods covered by the manufacturers invoices shown to have been issued later. As rightly pointed out by learned SDR, there is no evidence of the goods supplied by the manufacturer having been exported by the appellants. The appellants have even failed to satisfy the substantive requirements of clause (a) of the proviso to Section 11BC of the Central Excise Act. Procedurally also, they have failed to comply with the conditions of Section 11B. Hence the order of the lower appellate authority is liable to be sustained and it is ordered accordingly. The appeal is dismissed."

4. As seen from the above decision, the appellants in the past also had not produced relevant original documents before any of the authorities and even in the present appeal, they have failed to submit original documents. I do not find any infirmity in the impugned order. Accordingly, the impugned order is upheld and the appeal is dismissed.

(Dictated and pronounced in open court)

(R. PERIASAMI) TECHNICAL MEMBER gs

5