OIO No. 08/JC/2011 Dated : BRIEF FACTS OF THE CASE:
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1 BRIEF FACTS OF THE CASE: M/s Bhavin Impex Pvt. Ltd., Plot 129, GIDC, Phase - II, Dared, Dist: Jamnagar (100% EOU) (hereinafter referred to as the noticee ) are engaged in the manufacturing of brass sanitary fittings, brass bolts, nuts, screws, etc.,, classifiable under Chapter 74 of the Central Excise Tariff Act, 1985, out of imported raw materials, viz., mix brass scrap/ mix brass scrap with iron attachment & other impurities, etc., procured duty free under Notification 52/2003-Cus, dated, read with Foreign Trade Policy, and as per procedure laid down under the scheme for the EOUs. They are also holding a private bonded warehouse license 02/ dated, 29/09/2005 issued by the Assistant Commissioner, Central Excise, Division-Jamnagar under section 58 of the Customs Act, 1962, permission to manufacture in-bond under section 65 ibid, and central excise registration AABCB6193PXM001, dated: 10/10/2005 issued by Central Excise Division, Jamnagar. 2. The noticee was issued a Letter of Permission KASEZ/100%EOU/II/114/ , dated, 07/12/2004 by the Development Commissioner, Kandla Special Economic Zone, Kandla for manufacture of brass sanitary fittings, brass bolts, nuts, screws, etc., 3 The noticee have executed a B-17 bond for Rs.100 lac and have undertaken to observe all the provisions of the Customs Act, 1962, the Central Excise Act, 1944, and the rules framed thereunder and to pay on demand an amount equal to the customs and central excise duties leviable on the goods as are not proved to the satisfaction of the Assistant Commissioner/Deputy Commissioner of Customs/Central Excise to have been used in the manufacture of articles for export. 4. It appeared that the noticee had imported raw materials, namely, mix brass scrap for manufacture of brass sanitary fittings, brass bolts, nut, screw, etc., without payment of customs duty, excise duty and special additional duty by availing the benefit of exemption under Notification 52/2003-Cus, dated, and had manufactured various finished excisable goods. They had cleared MT of manufactured goods, namely, Brass Sanitary Fittings & Brass Nut Bolt Screws classifying the same under CETH & , totally valued at Rs. 1,18,11,410/- for the purpose of export during the month of October, 2008 and November, The said goods were removed by the noticee under self-certification and self-sealing procedure, i.e., without examination by the central excise officers, for export without payment of duty under the provisions of rule 19 of the Central Excise Rules, 2002 and by following the procedure prescribed under Notification 42/2001-CE (NT) dated The noticee submitted relevant ARE-I applications to the Page 1 of 8
2 jurisdictional Central Excise Range AR SSBY, Jamnagar, after removal of the goods for export, thereby intimating the clearance of goods by them under the said self-certification and self-sealing procedure. 6. It appears that as per condition (ii) of Notification 42/2001- CE (NT) dated , export of excisable goods are allowed without payment of duty from the factory of production or manufacture or warehouse or any other premises subject to the condition that goods shall be exported within six months from the date on which these were cleared for export from the factory of production or manufacture or warehouse or other approved premises or within such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise or the Maritime Commissioner may, in any particular case, allow. However, it appears that the time limit of six months specified under Notification 42/2001-CE (NT) dated expired on the dates mentioned against each in the Table below: TABLE Sr ARE I Date of Clearance from the Factory Due date by which goods should be exported 1 011/ / / Whereas the Superintendent of Central Excise, AR, SSBY, Jamnagar vide letter IV/Annex-19/2009/Bhavin/SSBY dated requested the noticee to submit the proof of export in respect of the goods cleared for export under cover of the ARE-1 applications mentioned above. However, the noticee failed to submit proof of export of the said goods. The Superintendent of Central Excise, AR, SSBY, Jamnagar reminded the noticee vide his letter dated in the matter but the noticee neither produced proof of export of the said goods nor assigned any reason for failure to do so. Therefore, it appeared that the noticee failed to export the said goods within the stipulated time period of six months from the date of clearance from the factory as per condition (ii) of Notification 42/2001-CE (NT) dated It appeared that by their acts of omissions and commissions, viz., (i) failure to export the aforesaid goods within the stipulated period (ii) failure to apply for extension of time for export, to the jurisdictional Assistant Commissioner of Central Excise (iii) failure to produce proof of such export to the proper officer of central excise and (iv) failure to respond to the aforesaid communications from the jurisdictional Range Superintendent of Central Excise, the noticee have rendered the aforesaid excisable goods weighing MTs valued at Rs. 1,18,11,410/- (assessable value) liable for confiscation under rule 25 of the Central Excise Rules, It further appeared from the above Page 2 of 8
3 facts that the noticee had cleared the excisable goods without payment of duty for export but failed to export the same within six months and therefore, had contravened the provisions of rule 19 of the Central Excise Rules, 2002 read with the provisions of Notification 42/2001-CE (NT), dated: Therefore, it appeared that duty equivalent to the Central Excise duty foregone on MT of goods cleared under the aforesaid ARE-Is is required to be recovered from them for non-fulfillment of the conditions of the above referred provisions of Central Excise Rules, 2002 and the Notification. It also appeared that the noticee were liable for imposition of penalty under section 11AC of the Central Excise Act, 1944 read with rule 25 of the Central Excise Rules It further appeared that the noticee were required to pay central excise duty amounting to Rs. 32,40,697/- on MT of excisable goods valued at Rs.1,18,11,410/- cleared without payment of duty in contravention of rule 19 of Central Excise Rules, 2002 and Notification 42/2001-CE (NT) dated and the said duty of excise on the above said quantity of the goods appeared recoverable from them in terms of the B-17 bond executed by them read with section 11A of the Central Excise Act, 1944 along with interest at appropriate rate on the said central excise duty under section 11AB of the Central Excise Act, Accordingly, a show cause notice V.JMR/AR-SSBY/Commr./170/ 2009 dated was issued by the Commissioner, Central Excise & Customs, Rajkot Central Excise Bhavan, Race Course Ring Road, Rajkot and a subsequent corrigendum dated was issued making the notice answerable to the Joint Commissioner, CCE, HQ., Rajkot asking the noticee as to why: (a) The excisable goods, viz., MTs of Brass Sanitary Fittings, Brass Nuts, Bolts and Screws, valued at Rs.1,18,11,410/- (assessable value) should not be held to be liable to confiscation under the provisions of rule 25 of the Central Excise Rules, 2002 read with the provisions of the B-17 Bond executed by them; (b) Central Excise duty amounting to Rs.32,40,697/- (Rupees Thirty Two Lac Forty Thousand Six Hundred Ninety Seven Only) should not be recovered from them, as provided under Section 11A of the Central Excise Act 1944 read with the provisions of the B-17 bond executed by them; (c) Interest at appropriate rates on the above central excise duty should not be charged and recovered from them under section 11AB of the Central Excise Act, 1944 read with the provisions of the B-17 Bond executed by them; and Page 3 of 8
4 (d) Penalty should not be imposed on them under section 11AC of the Central Excise Act, 1944 read with rule 25 of the Central Excise Rules, DEFENCE: 11. The noticee vide letter dated submitted the defence reply to the SCN wherein they interalia submitted that the alleged three consignments had already been exported within the allowed time limit as per law; that their messenger approached the Range Office, Jamnagar several times during April & May 2009, to submit the monthly Return of Annexure 19 for the month of March-09, alongwith Proof of Exports; that the Superintendent in charge and Inspector of the range office refused to accept these; that therefore, copy of the monthly return alongwith copies of all relevant documents were sent to them by Registered Post on They attached copy of Postal Receipt and further stated that the relevant EP copy of Shipping Bills were misplaced/not traceable by their CHA at shipping port and therefore as provided in Central Excise Manual, Chapter 7, Part II, Para 13.7 they have submitted collateral evidences of Exports i.e. Remittance Certificate (Bank Certificate of Export Realization) & Mate s Receipt in addition to Exchange Control Copy of Shipping Bills & Bill of Ladings, vide their monthly return of Annexure-19 for the month of March, They have also enclosed the monthly return of Annexure-19 for the month of March 2009 with all the relevant documents. They also submitted that they do not need a personal hearing and requested to decide the case on merits. 12. In the interests of natural justice, an opportunity for personal hearing was given to the noticee on 09/ and 22/ The noticee vide letter dated submitted that whatever, they had to say in their defence, was already said by them in their defence reply and they do not have anything more to say or submit in personal hearing. They once again requested to decide the case on merits. FINDINGS: 13.I have carefully gone through the facts of the case, evidence available on record and written submission made by the noticee in this regards. 14. On scrutiny of case records, I find that the noticee (100% EOU) were engaged in the manufacturing of brass sanitary fittings, brass bolts, nuts, screws etc., classifiable Chapter 74 of the Central Excise Tariff Act, 1985, out of imported raw materials, viz. mix brass scrap/ mix brass scrap with iron attachment & other impurities etc. procured duty free under Notification 52/2003-Customs dated as per the procedure laid down under the Page 4 of 8
5 EOU Scheme. The noticee were having necessary license, permission and central excise registration for the same. They had also executed B-17 Bond for Rs.100 lakhs and had undertaken to observe all the provisions of Customs Act, 1962 and Central Excise Act, 1944 and to pay on demand an amount equal to the customs and central excise duties leviable on the goods that were not proved to have been used in the manufacture of articles for export. 15. I find that the show cause notice was issued to the noticee on the ground that they had cleared MT of manufactured goods, namely Brass Sanitary Fittings & Brass Nut Bolt Screw valued at Rs.1,18,11,410/- for export, during the month of October, 2008 and November, 2008 vide three ARE Nos under self-certificate and self sealing procedure under Rule 19 of the Central Excise Rules, 2002 and under Notification 42/2001-CE (NT) dated but however, they have failed to submit proof of export of the said goods to the Superintendent, Central Excise, AR, SSBY, Jamnagar. As per the condition (ii) of the Notification 42/2001-CE (NT) dated , export of excisable goods are allowed without payment of duty from the factory of production or manufacture or warehouse or any other premises subject to the condition that goods shall be exported within six months from the date on which the same were cleared for export from abovementioned approved premises. 16. I find that the noticee in their defence submissions dated argued that they approached the Range Office several times during April & May, 09 for submitting the Monthly Return of Annexure-19 for the month of March, 2009 alongwith Proof of Export but the Range Office refused to accept the same. As such, the same were sent by them through Registered Post on date The have also submitted the copy of postal receipt. 17. I further find that the noticee, alongwith their defence reply, have also submitted copy of documents viz. copy of ARE-1s, exchange control copy of Shipping Bills, copy of invoices/ packing lists, copy of Bill of Lading, copy of Mate Receipt and Bank Realization Certificates confirming that the goods under reference were exported by them. The details of the documents are as under : ARE Date Documents submitted as proof of export 11/ Exchange Control copy of Shipping Bill dated Copy of BL IXY/JBL/LCL/ dated Copy of Mat Receipt dated Page 5 of 8
6 4. Copy of Bank Realization Certificate dated Invoice and Packing List. 12/ Exchange Control copy of Shipping Bill dated Copy of BL IXY/SIN/LCL/ dated Copy of Mat Receipt dated Copy of Bank Realization Certificate dated Invoice and Packing List. 14/ Exchange Control copy of Shipping Bill dated Copy of BL IXY/SIN/LCL/ dated Copy of Bank Realization Certificate dated Invoice and Packing List. 18. I find that para 13 of Chapter 7, Part-I elaborates on the procedure relating to proof of export and re-credit against such proof. The relevant portions which have a direct bearing on this case is reproduced below: 13.2 The exporter shall submit a Statement, at least once in a month, in Form specified in Annexure-19 along with the Original copies of A.R.E. 1 with due certification of export (Pass for Shipment Order) by Customs authorities at the place of export to the Divisional office (through Range) or in the office of the bond-accepting authority. Other supporting documents shall also be furnished, namely, Self-attested photocopy of Bill of Lading and Self-attested photocopy of Shipping Bill (Export Promotion Copy). The Range office or the Office of the bond-accepting authority on receipt shall immediately acknowledge the Statement In case of any loss of document, the Divisional Officer or the bond accepting authority may get the matter verified from the Customs authorities at the place of export or may call for collateral evidences such as remittance certificate, Mate s receipt etc. to satisfy himself that the goods have actually been exported. 19. With this background, these documents were sent to the Assistant Commissioner of Central Excise, Division-Jamnagar to cause necessary Page 6 of 8
7 verification as he is the Divisional officer and bond accepting authority. The Assistant Commissioner of Central Excise, Division-Jamnagar vide letter F. VIII/48-24/Cus-T/ dated in his report has submitted as under: In this connection, it is to report that all the documents which were forwarded by your office have been verified with the alongwith Annexure-19 submitted by the party. Further, this office has also verified the following documents the details thereof are as under : Sr. ARE- ARE-1 Invoice S/B Date of Duty Rs. B/L 1 Date Shipment / - IXY/JBL/LCL/ /- IXY/SIN/LCL/ / - IXY/SIN/LCL/ In case of the copies of ARE-1 12/2008 dated in original and duplicate, no endorsement of the Customs (overleaf) notice therefore, the following documents have been called for from the party s as a collateral evidence of exports as provided in Central Excise Manual, Chapter 7, Part II, para 13.7 i.e. BRC, Mate s Receipts the details of the same, are as under : ARE-1 Date S/B Mate s Receipt Date BRC Date M M Not submitted NA 08 M From the above facts, it appears that goods were exported within the stipulated time, but party failed to produce the documentary evidences in time. 20. In view of the above report and as I am also convinced that the additional documents produced especially, the Bank Realisation Certificates prove that the goods have been exported, no demand lies in this case. 21. In view of the above discussion, I pass the following order: Page 7 of 8
8 ORDER (i) I accept the documents submitted by noticee as proof of export against ARE-1 Nos. 11/ dated , 12/ dated and 14/ dated and drop the proceedings initiated against M/s. Bhavin Impex, Jamnagar vide SCN V.JMR/AR-SSBY/Commr./170/2009 dated F. V.74/15-186/Adj/09 (M. GNANASUNDARAM) JOINT COMMISSIONER By Regd. Post A.D. To, M/s Bhavin Impex Pvt. Ltd., Plot 129, GIDC, Phase - II, Dared, Dist: Jamnagar. Copy to: 1) The Commissioner(RRA), CCE, HQ., Rajkot 2) The Assistant Commissioner, Central Excise Division, Jamnagar. 3) The Superintendent of C. Ex., A.R. S.S.B.Y., Jamnagar. 4) Guard file Page 8 of 8
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