VIDYALAKSHMI MILLS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) No representation for the appellants despite notice, nor any request of theirs for adjournment. Having examined the records and heard Id. SDR, I am of the view that the appeal itself requires to be summarily disposed of. Accordingly, after dispensing with pre -deposit, I proceed to deal with the appeal.

(2.) The appellants are manufacturers of polyester blended yarn (Chapter 55 of the CETA Schedule). In January 1998, they cleared certain quantities of polyester yarn for export, without payment of duty under AR4s. These clearances were made under bond in terms of Rule 13 of the Central Excise Rules, 1944. On a scrutiny of records, the department found that M/s. Akai Impex Ltd., Bombay (merchant -exporters), to whom the above clearances were made, were not merchant -exporters of the appellants. Therefore, the benefit of duty -free clearance was proposed to be denied to the appellants. This proposal was contested. The dispute eventually reached the Commissioner (Appeals), who affirmed the original authority's order confirming demand of duty against the assessee and imposing a penalty of Rs. 5,000/ -. The present appeal is against the Order -in -Appeal No. 237/2004 -CE., dated 30 -4 -2004 passed by the lower appellate authority.

(3.) Ld. SDR submits that this appeal is barred by the first proviso to Subsection (1) of Section 35B. She also points out that, in the preamble to the impugned order, Commissioner (Appeals) had given correct advice to the assessee to move the Central Government, if aggrieved, under Section 35EE of the Central Excise Act. After looking up the provisions of law referred to by Id. SDR, I find that she is right. The goods in question were exported to Hong Kong without payment of duty of excise, which is an undisputed fact. According to the first proviso to Sub -section (1) of Section 35B of the Act, no appeal shall lie to this Tribunal against any order passed by Commissioner (Appeals) under Section 35A in relation to goods exported outside India (except to Nepal or Bhutan) without payment of duty. The remedy against such an order is an application for revision under Rule 35EE to the Central Government. It is also noticed that, in the preamble to her order, Id. Commissioner (Appeals) had clearly directed the assessee to apply to the Central Government under Section 35EE(1), if aggrieved. Obviously, this guidance was overlooked by the party.