Bombay High Court
M/S Ismt Limited, Ahmednagar vs Union Of India And Ors on 17 June, 2016
Bench: S.V. Gangapurwala
{1}
940 fh .odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8968 OF 2011
M/s. ISMT limited,
C-1, MIDC,
Ahmednagar 414 111.
.. PETITIONER
VERSUS
1] Union of India
Through the Joint Secretary
Ministry of Finance
having its office at 14,
Hudco Vishala Bldg., B Wing,
6th Floor, Bhikaji Cama Place
New Delhi.
2] The Assistant Commissioner,
Of Central Excise,
2nd Floor, Kisan Kranti Bldg.,
Market Yard, Station Road,
Ahmednagar. 414 001.
3] Deputy Commissioner,
Central Excise and Customs
Kisan Kranti Building,
Market Yard, Station Road,
Ahmednagar 414 001.
.. RESPONDENTS.
Mrs. Charuta Deshmukh, Advocate for the petitioner
Mr. S.B. Deshpande, ASG for respondent No.1.
CORAM : S.V. GANGAPURWALA
& K.K. SONAWANE, JJ.
DATE : 17th JUNE , 2016.
{2}
940 fh .odt
JUDGMENT [ PER S.V. GANGAPURWALA,J] :-
1] The petitioner is praying for quashment of the order passed in
revision application on 20th December, 2010, thereby confirming the order
passed by the Commissioner (Appeals) Central Excise and Customs,
Aurangabad under the policy framed by the Excise Department. In order to
avail the benefits of Notification No. 42/2001, the goods shall have to be
exported within six months from the date on which those were cleared for
export from the factory of the production or the manufacturer or warehouse
or other approved premises within such extended period a the Assistant
Commissioner of Central Excise or Deputy Commissioner may in any
particular case allow. According to Revenue, the petitioner has exported the
goods without payment of duty under the letter of undertaking. As they
failed to submit the proof of export within the stipulated period of six
months, the petitioners debited the duty involved in various CENVAT
Accounts. Since they failed to pay the interest involved, the Assistant
Commissioner after due process of adjudication, confirmed the interest
payable under Section 11AF of the Central Excise Act, 1944 and also imposed
equal penalty on them. It was later on disclosed that said CENVAT Credit is
again taken by the petitioner after furnishing proof of export. It is not a
matter of dispute that the petitioner has exported the goods within a period
of six months from the date of production and as such, under the policy of
the Government, it is entitled for exemption. It is the contention of the
Revenue that since the petitioner has failed to submit a proof of the export,
the Revenue is justified in directing imposition of levy and penalty. Reliance
is placed on a circular dated 20 th May, 1996, where-under, an exporter is
obliged to file the proof of export.
2] Mrs. Deshmukh, learned counsel for the petitioner submits that
the document dated 2.12.2010 issued by the Assistant Commissioner itself
clarifies the authenticity of the export. It has been established and
confirmed that the duty has been deposited correctly, so also, the proof of
export has been accepted. The learned counsel relies on the judgment of
{3}
940 fh .odt
the Apex Court in the case of "Mangalore Chemicals and Fertilizers Vs.
Deputy Commissioner" AIR 1992 SC 152.
3] Mr. Deshpande, learned counsel submits that the petitioners
were required to submit the proof of export within a period of six months.
Petitioners failed to submit the same. Unless proof of export is submitted, it
would not be possible for the authority to come to the conclusion about the
payment of duty and export having taken place within six months. Proof of
export has to be to the satisfaction of the authority. The condition of
satisfaction of the authority regarding the proof of export is mandated in
the undertaking prescribed and submitted by the petitioner also. Learned
counsel relies on the judgment of the Apex Court in the case of Kedarnath
Jute Manufacturing Co. Vs. Commercial Tax Officer dated 2nd April,
1965.
4] We have considered the submissions. Petitioners failed to
submit the proof of export within the stipulated period of six months. The
authorities, after undertaking the process of adjudication under Section
11AF of the Central Excise Act, imposed penalty as the petitioners failed to
pay the interest also. It is disclosed that CENVAT credit is taken by the
petitioners after furnishing the proof of export. There is no dispute between
the parties that the duty has been debited correctly and the authenticity of
the export is established and proof of export has been accepted by the
Department. No provision is pointed out which lays down the consequences
of imposition of penalty and interest on non submission of proof of export.
5] The Apex Court in the case of Mangalore Chemicals referred to
supra) has observed that the distinction between the provisions of the
statute which are of substantive character and were built in with certain
specific objectives of policy on one hand and those which are merely
procedural and technical in their nature on the other hand, must be kept
clearly distinguished.
{4}
940 fh .odt
6] In the light of above, the impugned judgments are quashed and
set aside. Rule is made absolute in terms of prayer clause (A). In the
circumstances, there shall be no orders as to costs.
[K.K. SONAWANE] [S.V. GANGAPURWALA]
JUDGE JUDGE.
grt/-
