ROLLWELL FORGE LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THESE appeals have been filed by the appellant against OIO No. KDL/COMMR/58/08, dated 13 -12 -2008/13 -1 -2009 passed by Commissioner of Customs, Kandla. Under this OIO adjudicating authority has denied certain drawback claims of the appellant M/s. Rollwell Forge Ltd., Rajkot (RFL), imposed redemption fine and also imposed penalties upon RFL and two other appellants Shri Babulal R. Mehta, Managing Director of RFL and Shri N.R. Mehta, Director of RFL, under Sec. 114(iii) of the Customs Act, 1962.

(2.) BRIEF facts of the case are that RFL is engaged in the manufacture of different types of Flanges classifiable under CETH 73.07 for which RFL is also holding a Central Excise Registration falling under the jurisdiction of Supdt. of Central Excise, Range - Shaper (Veraval), Division II, Rajkot. RFL is also exporting the Flanges manufactured by him and at times, to meet the export requirements of the Customers, RFL imports certain categories of Flanges which are not manufactured in his registered unit but re -exported after undertaking certain processes. RFL is maintaining separate records of goods manufactured by him or procured from outside. Appellant RFL imported several consignments of Flanges from China for the purpose of re -export and after doing certain processes in his factory, not amounting to manufacture. Appellant also gives an intimation to that effect to the concerned authorities at the time of import of Flanges. At the time of re -export, 100% examination of the export goods is done by the Revenue to establish the identity of Flanges earlier exported and the examination report given by the customs examining officer at the time of export confirms this aspect. This case was investigated by the Revenue when Flanges imported under B/E No. 108032, 10808, 10414 were being re -exported under S/B No. 1477 and 1013, dated 16 -10 -2006, dated 7 -11 -2006 respectively. During examination of the Flanges, it appeared that the goods being exported are not the same what were imported as no marking were seen at the time of import of Flanges. The Flanges under these shipping bill were seized and later allowed export provisionally as per a bond executed by the RFL. Investigation was extended to the factory premises of the appellant by the officers of the Preventive Wing of the Commissionerate and statements of the employees of RFL were recorded to the effect that there is no way by which imported Flanges and indigenously manufactured flanges can be differentiated. Three show cause notices were issued to the appellants and confirmed by the adjudicating authority against which present appeals are filed.

(3.) SHRI P.V. Seth (Adv.) appearing on behalf of the appellants argued that at the time of each import an intimation was given to the Revenue to the effect that imported goods will be subject to certain process not amounting to manufacture and thereafter the imported goods will be exported claiming drawback of 98% under Sec. 74 of the Customs Act, 1962. He brought to the notice of the bench various such intimations given to the Assistant Commissioner of Customs, Kandla, appended in Memorandum of Appeal. One such intimation dated 24 -7 -2006 with respect to B/E No. 154964, dated 18 -7 -2006 was explained by the Advocate. It was emphasised by him that the subject consignments were exported after doing certain processes in appellants factory and it was claimed that 98% duty drawback under Sec. 74 of the Customs Act, 1962 will be availed. It was his case that the type of makings to be made on the flanges by the appellant was also specified for identification purposes at the time of export of the imported goods. He also made the bench go through the endorsements made by the customs examining officer on the back of the shipping bill to the effect that after 100% examination and verification of the goods it was recorded that the case is of re -export of goods with respect to a particular bill of entry. Shri Sheth (Adv.) also argued that shipping bill/Bill of entry -wise tally sheets, duly certified by a Chartered Engineer, were also furnished to the adjudicating authority alog with the Registers/records maintained in their factory. That as per these records the identity of re -export of goods was established and drawback claims sanctioned. It was his case that adjudicating authority has not rejected these submissions at all. That there is no allegation of diversion of imported goods in the show cause notice. That even if the export of indigenously manufactured goods is presumed to be correct then also appellant was entitled to Cenvat credit of duties paid or corresponding drawback for exporting indigenously manufactured goods. That as per CESTAT, Bangalore judgment in the case of M/s. Mac Megha Agro Equipments (P) Ltd. v. CC, Cochin [2006 (199) E.L.T. 260 (Tri. -Bang.)] also assessments once finally made and not challenged by the Revenue, cannot be reopened by way of raising demands. He also relied upon the decision of GOI In Re : Semiconductor Complex Ltd. [2012 (275) E.L.T. 285 (G.O.I.)] arguing that once identity of re -exported goods is established as per examination report then Sec. 74 DBK cannot be denied. Further, the Advocate of the appellants argued that cross -examination of the witness whose statements are relied upon was not allowed by the Commissioner.