NATIONAL IMPEX Vs. COMMISSIONER OF C. EX., DAMAN

JUDGEMENT

(1.) AFTER dispensing with the condition of pre -deposit of duty and penalties imposed on both the applicants, we proceed to decide the appeals themselves inasmuch as we find that the alternative submission of the appellant as regards the applicability of exemption of Notification No. 124/84 -C.E., dated 26 -5 -1984 has not been considered by the adjudicating authority.

(2.) AFTER hearing both the sides, we find that demand of duty stands confirmed against M/s National Impex in respect of two ARE -1s dated 29 -1 -2003 on the findings that the appellants have not shown any proof of export in respect of the goods covered by the said two ARE -1s. As such, the duty stands confirmed in terms of Section 3(1) of the Central Excise Act, 1944. The appellants pleaded before the adjudicating authority that though they had prepared the said two ARE -1s but the same were subsequently cancelled. In support of their above plea, they pleaded that no corresponding entries were made by them in their export register. As such, it is also their case that the goods covered by the said two ARE -1s were not exported. The said plea has not been accepted by the adjudicating authority.

(3.) IT is further seen that the appellants made alternative prayer that in any case, goods if allegedly cleared, would be fully exempted in terms of Notification No. 124/84 -C.E., dated 26 -5 -84. The said Notification exempts all the excisable goods produced or manufactured in a 100% Export Oriented Undertaking from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944. Proviso to said Notification is to the effect that the exemption contained in this Notification shall not apply to such goods if allowed to be sold in India. Inasmuch as the disputed goods were not allowed to be sold in India, they would, in our prima facie view, be entitled to exemption as provided in the said Notification. However, we find that though the above plea was raised before the adjudicating authority, the same was not considered by him. As such we set aside the impugned order, and remand the matter to the Commissioner for fresh adjudication. It is made clear that all the issues are open kept open, without expressing any views on the merits of the case. The appeals are allowed by way of remand. Stay petitions also get disposed of.