NAV MAHARASHTRA CHAKAN OIL MILLS Vs. CC

JUDGEMENT

(1.) THESE two appeals have been filed against two different orders. C. 165/91 has been filed against the decision of Collector of Central Excise and Customs, Pune made in Sr. No. 1/Cus/1991 dated 8.1.1991, whereunder the Collector had levied penalty of Rs. 25 lakhs against the appellant for violation of Section 112 of Customs Act 1962. Appeal No. C. 659/92 -Bom has been filed by the appellant against the decision of Collector of Central Excise and Customs (Appeals) Pune made in Order -in -Appeal P -l 15/92 dt. 20.4.1992 whereunder the collector as appellate authority had confirmed the finding of the Assistant Collector that a quantity of 1531.189 MTs of imported raw material was not accounted for as the appellants had illegally removed and disposed of the same. He, therefore, confirmed the Order -in -Original No. CEX/31/PIV/90 dt. 29.8.1990 passed by the Assistant Collector, Pune in demanding duty of Rs. 10,72,361/ -.

(2.) WE shall deal with these two appeal seriatum (a) Appeal C. 659/92: This is an appeal against the decision of Collector (Appeals) whereunder he had upheld an order passed by the Assistant Collector. Pune confirming the demand of Customs Duty of Rs. 10,72,361.59 on 1531.189 MTs of imported items found short during the stock taking of their EOU. The appellant owned 100% EOU licence as such for manufacture and export of processed pulses. In this appeal the issue for consideration is whether benefit of exemption notification No. 13/81 Cus dt. 9.2.1981 could be denied to the imported raw material merely on account of certain procedural lapses committed by the Appellants. It is the case of the appellants that the resultant finished goods have already been exported in discharge of the export obligation in terms of the bond executed by the appellant at. the time of duty free import, the alleged irregularity of stock being less, for which no duty could be levied. It is also the case of the appellants that no penalty could be levied. Due to certain paucity of place for the reason that huge consignment of about 2,1 30 MT of pulses carried by vessel M.V. Shazli which had arrived unexpectedly after 5 months. The so called shortage had occurred in as much as the goods were stored in a place other than the bonded warehouse with the oral permission of the department. Further is the case of the appellant that the goods were stored in an adjoining place located in the licenced premises of the appellant's factory with the consent of departmental officials. When the officers came for physical inspection from 26.12.1989 to 18.1.1990 appellant wrote a letter on 10.1.1990 to the Collector stating that balance stock was lying in the adjoining godown. The inspecting officers refused to consider the stock of raw material lying inside the adjoining godown even though they had time to look into it. The Show Cause Notice dated 25.1.1990 as well as corrigendum dated 1.6.1990 were issued for which replies were made. Statement of Shri Shantilal was also recorded. A.C. who heard the matter had confirmed the demand of duty. On appeal the Collector (Appeals) had confirmed it. Hence the present appeal.

(3.) AS against this ld. DR Shri Rao reiterated the grounds mentioned in the order. He stated that the letters mentioned by the appellants viz. the letter written by the appellants dated 10.1.1990 and 23.1.1993 (sic) do not show about non acceptance of the shortages. He specifically invited our attention to the statement of Shantilal made as to acceptance of shortage. He also invited our attention to the other circumstances of the cases to show that violations of law as alleged in SCN had taken place. He states the statement that foreign exchange has been earned on the export would not wash away the violations that have taken place. The charge here was the violation of removal of the goods from the bonded warehouse. The alleged duress it is claimed by the D.R. is no duress at all.