Commissioner of Central Excise, Vs. Lucky Plast Ltd.

1. The respondents manufacture PVC Leather Cloth. They also export the excisable goods under bond. They exported these goods vide AR 4 No.1/96-97, dt. 29-6-96 involving central excise duty amounting to Rs. 4,14,000/- They were however issued a show cause notice dated 18-12-96 calling upon them to show cause why the aforesaid amount payable on the said AR 4 should not be recovered from them under Rule 14A of the Central Excise Rules, 1944 and why a penalty should not be imposed on them under the said rule. The Joint Commissioner of Central Excise, Jaipur vide his order dated 11-7-2000 observed that the party had not produced the proof of export in respect of the aforesaid AR 4. He has observed that in the absence of production of proof of export like Bill of Lading, Shipping Bill and Original copy of AR 4, noticee has not furnished the proof of export as required under the rules. He has accordingly confirmed the duty of Rs. 4,14,000/- and further imposed a penalty of Rs. 2,000/- on them under Rule 14A.2. The party filed an appeal and the Commissioner (Appeals), Jaipur vide his order dated 8-8-2001 has allowed the appeal with the following observations: "I have gone through the case records and in view of the aforesaid submissions hold that the impugned order has incorrectly been passed inasmuch as they have submitted the best possible evidence available with them establishing proof of export. Accordingly, I hold that the proof of export be admitted by the concerned party if on verification from the record it is found that the appellants had filed with the department the original of the photo copy of AR 4 No. 1/96-97, dated 29-6-97, date stamped and signed by the Customs authority certifying the shipment on 10-7-96 vide Shipping Bill No. 783151, dated 4-7-96 and a copy along with a certified copy of the Bill of Lading referred to above.

3. This is a Revenue appeal against the impugned order of Commissioner (Appeals). 1 have heard Shri B.C. Mahey, JDR for the appellants. The respondents are not represented despite the notice of hearing on 13-11-2001 sent to them by the Registry of the CEGAT which is duly delivered. There is no communication from the respondents either requesting for an adjournment or giving the reasons for their absence.

I therefore proceed to decide the matter on the basis of the evidence on record. It is contended by the Revenue in their appeal that the party did not reply to the show cause notice nor did they appear for the personal hearing afforded to them twice. It is contended that in the Trade Notice No. 42/96-Cus., dated 20-6-96 of the Commissionerate, a detailed procedure has been prescribed for furnishing the required documents so that proof of export can be accepted but the as-sessee has produced only a photo copy of the original AR 4 not certified and endorsed by the customs authorities in token of shipment and no other document has been produced as prescribed by the department; that in absence of documents like Bill of Lading, Shipping Bill and original copy of AR 4, the party failed to furnish proof of export as required under Central Hxcise Rules. 1 have considered these submissions. It is observed that Commissioner (Appeals) has accepted the photo copies of the concerned documents as a proof of export for the excisable goods under the impugned AR 4. 1 agree with the contention of the Revenue that the photo copies of the concerned documents cannot be admitted as a proof of export. It is further observed that the appellants despite being afforded ample opportunity, neither filed any documents nor did they appear for personal hearing before the original authority. If they had submitted any documents to the lower appellate authority, he should have in all fairness, either remanding the case for de novo consideration or invited the comments of the original authority in respect of such documents. On over all appreciation of the facts presented before me, i am of the view that the respondents have not fulfilled the obligation cast on them with regard to the proof of export of excisable goods cleared without payment of duty. I therefore allow the Revenue appeal relating to the demand of duty of Rs. 4,14000/- and set aside the impugned order of Commissioner (Appeals) in this regard. However, the matter docs not call for imposition of any penalty or the respondents and in that respect, the appeal of the department is rejected.