ORDER
M.P. Bohra, Member (J)
1. Heard Shri A.K. Mondal, learned SDR for the appellant and Shri S.K. Bagaria, Sr. Advocate and Shri C.M. Ghorawat, Advocate for the Respondent. Learned SDR have raised two fold arguments. Firstly, he submits that the learned Commissioner’s appeal has committed error in accepting the fact that the appellant has already received the letter of admittance of the proof of export from the competent authority. He submits that in respect of 6 AR-4S, involved duty of Rs. 8,23,592.00 could not be issued by the competent authority as the goods could not be exported within the extended period allowed by the competent authority. Only in respect of 2 No. of AR-4S involved duty of Rs. 22,16,639.00 against which proof of admittance have been issued by the competent authority . The appellant has represented the facts that they have already received the letter of admittance of proof of export in respect of 8 AK-4S before Commissioner (Appeals) and accepted by the Commissioner (Appeals) without any verification.
2. Secondly, he submits as regards 7 No. of AR-4S where the goods were diverted for home consumption, the contention of Commissioner (Appeals) that the appellant has already paid, the duly amount alongwith the interest is not correct. The assessee paid duty of FOB value and interest @ 15% from 13-5-2002 instead of value under section 4 and interest @ 24% as contemplated in CBEC manual. Therefore, the Deputy Commissioner, Central Excise and Customs, Ballasore’s demand of the differential duty amounting to Rs. 12,97,588.00 and interest of Rs. 10,29,783.00 from the assessee was correct. Therefore, he submits that the appeal of Revenue may kindly be accepted and the order of Commissioner (Appeals) may be set aside.
3. Learned Advocate for the Respondent Mr. Bagaria submits that in the present case as referred at page 13 of paper book, the goods 1334 sets were exported. 1211 sets were exported within extended period and 123 sets were exported afterward. He submits that in the remarks column of Annexure II at Page 13, the Superintendent of Central Excise and Customs, Ballasore has mentioned that the goods could not be exported within the period allowed by the Competent authority, proof of admittance has not been issued from this end in respect of 6 AR-4S, detail in column No. 7 to 13. He submits that the factum of exports has been admitted and the procedure cannot deny the rebate. Learned Advocate has placed his reliance on the judgment rendered in Alpha Garments v. Collector of Central Excise, New Delhi – 1996 (86) E.L.T. 600 and 2003 (153) E.L.T. 306 (Tri. -Del.) – A.S. Forgings v. Commissioner of Central Excise, Chandigarh. He submits that in the present case the factum of export has been admitted by the appellant. Under the circumstances, the penal provisions cannot be involved.
4. He, further, submits that regarding 7 No. of AR-4S, where the goods were diverted for home consumption, the duly was paid alongwith the special Excise Duty and interest as evident from page 14 of the paper book. Me, further, submits that there was no show cause notice on this count and there was no adjudication regarding the differential duty. He submits that nobody can be condemned unheard. He submits that Show Cause Notices were issued on 3-4-2000, 2-5-2000, 2-6-2000 and 4-7-2000 and Assistant Commissioner passed orders on aforesaid notices on 28-2-2001, 21-12-2000, 19-12-2000 and 22-2-2001 whereas the letter demanding the differential duty was issued on 13-8-2002 which was not a part of the present proceedings. He submits that on this count also the appeal is not maintainable. He submits that the appeal may kindly be dismissed.
5. In the present case the total quantity of 1334 sets of Tyres and tubes were to be exported, 1211. sets were exported within the extended period and remaining 123 sets were exported after the extended period. So the total quantity of 1334 sets covered by AR-4S were exported. The factum of export has been admitted by the Supdt. of Central Excise and Customs, Ballasore as mentioned in annexure-1 at page 13 of paper book. Where the goods had already been exported, there was no loss of Revenue and grant of rebate is permissible. In present case also the goods had been exported and such grant cannot be denied as laid down in the case of Alpha Garment v. Collector of Central Excise, New Delhi -1996 (86) E.L.T. 600 (Tribunal) and A.S. Forgings v. Commissioner of Central Excise, Chandigarh – 2003 (153) E.L.T. 306 (Tri.-Del).
6. As regards 7 AR-4S, Commissioner by annexure 2nd of the appeal is concerned, they were diverted for home consumption. The perusal of annexure 2nd at page 14 of Paper Book will reveal that the duty has been paid at the time of diversion. There may be some difference in calculation of value and duty. The respondent had paid the duty on the basis of price prevailing on the date of AR-4S. Interest was also paid by the assessee but as contended by the learned SDR, there was a difference of duty on this account but no notice/notices were issued by the adjudicating authority. Neither any order has been passed regarding such differential duty by the adjudicating authority nor any opportunity has been given to the assessee. A man cannot be condemned unheard. It is principle of natural justice that the assessee must be given an opportunity to defend himself. There may be a short payment of duty for which the Department may initiate separate proceedings. As discussed above, the appeal cannot succeeds on both counts. Hence the appeal deserves to be dismissed. However, the Department will be free to initiate proceedings regarding the 7 AR-4S which were diverted for home consumption or short payment of duty.
Hence the appeal is rejected with the direction that the Department will be at liberty to initiate proceedings in respect of said 7 AR-4S which was diverted for home consumption, if there was any short payment of duty.