NATIONAL IMPEX Vs. COMMISSIONER OF CENTRAL EXCISE, DAMAN

JUDGEMENT

(1.) THE prayer in the application is to dispense with the condition of pre -deposit of duty amount of Rs. 7,96,207/ - confirmed against the appellant on the finding that though they have issued ARE -1, no export against the same has taken place. Identical amount of personal penalty stand imposed upon them.

(2.) AFTER hearing both sides, we find that the impugned order was passed by the Commissioner in de novo proceedings when the matter earlier was remanded by the Tribunal. The appellants stand that though two ARE -1 were issued, but they were subsequently cancelled and no clearances took place against the same on account of cancellation of the export order. Learned advocate fairly admits that due procedure for cancellation was not followed as no intimation to that effect was given to their jurisdictional Central Excise authority. However, he submits that the fact that no clearances took place, could be established by them by referring to the entries in their export register as also by co -lateral documentary evidences, which were seized by the department and their prayer to supply the copies of the same has not been acceded to by the adjudicating authority on the ground that the said seized records are not available in the office. The learned advocate submits that they cannot be put to inconvenience on account of loss of document by department. For the above proposition, he places reliance upon the Tribunal's decision in the case of Jet Speed Audio Pvt. Ltd. v. CCE, Mumbai -V as reported in 2006 (198) E.L.T. 296 (Tri. -Mumbai), laying down that the assessees documents recovered during the course of search having been misplaced by the department and not supplied to the assessee for defence, no duty liability can be fixed upon the assessee.

(3.) AFTER carefully considering the submissions, we find that the fact that as to whether clearances were effected against two disputed ARE -1 or not, can be established from the statutory record maintained by the appellant in the ordinary course of their business. Admittedly, such records were seized by the department and copies thereof are not supplied to the appellant, in spite of making requests to that effect. The said documents are reported to be misplaced and as such not available. As such, misplacement having occurred at the end of Revenue, assessee cannot be blamed for the same and cannot be subjected with the duty liability.