At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
For Respondents: S.V. Nair, Assistant Commissioner (AR)
1. The fact of the case is that the appellants have cleared excisable goods without payment of duty against CT-3 certificate on ARE-3 form. The case of the department is that the appellants have not produced the re-warehousing certificate in time, accordingly, they are liable to pay duty in terms of Rule 20(4) of Central Excise Rules, 2002. On this allegation a show cause notice was issued proposing demand of excise duty on clearance made against CT-3 provided by the consignee of the goods. The adjudicating authority confirmed the demands. On appeal, the Commissioner (Appeals) has upheld the adjudication order. Therefore the appellants are before me. None appeared on behalf of the appellants. However on going through the grounds of appeal, they submitted that the appellants could not produce the re-warehousing certificate as the same was not provided by the consignee. However, they have produced the evidence that the goods have been received by the consignee and the payments against the same was also received. It is also the submission of the appellants that there is no charge in the show cause notice that the goods are not received by the consignee. Since receipt of the goods is not under dispute, the demand cannot be raised from the consignor as per sub-rule (4) of Rule 20 of Central Excise Rules, 2002. The demand from consignor can only be raised if the goods have not been received by the consignee. In the fact of the present case, Rule 20(3) applies, according to which if at all there is any lapse and duty is recoverable, the same must be recovered from the consignee of the goods as the bond is executed by the consignee and CT-3 was issued against the bond.
2. Shri S.V. Nair, ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. Since the re-warehousing certificate was not produced by the appellants, they are liable to pay duty in terms of Rule 20(4) of Central Excise Rules, 2002.
3. I have carefully considered the submission made by both sides. I find that there is no dispute in the fact that the re-warehousing certificate was not produced by the appellants. However, there is no dispute that the goods were received by the consignee on the basis of the evidence produced by them. In such case, if at all any duty has to be recovered it can be recovered from the consignee of the goods in terms of Rule 20(3) of Central Excise Rules, 2002. The duty can be demanded from the consignor under this procedure, only in a case where goods are diverted without delivery of the goods to the consignee against CT-3 certificate, which is not the case here. Therefore, the demands raised against the appellants are not sustainable. The appellants admittedly did not produce re-warehousing certificate, which is requirement un
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der the Rule. The non-production of re-warehousing is contravention of the provisions. Therefore, the appellants are liable for penalty of ` 5,000/- under Rule 27 of Central Excise Rules, 2002. However, the duty demand and interest thereon are set aside. The appeal is partly allowed in the above terms.