ORDER
Gowri Shankar, Member (Technical)
1. The appeal is taken up for disposal with the consent of both sides after waiving deposit. Esteco V.K. Exports Ltd, the appellant before us executed a bond before the Asst. Commissioner of Central Excise, Junagar undertaking to produce evidence of export of 6981 tonnes of cement clinker. On the strength of this undertaking the clinker was permitted to be cleared by its manufacturer, Gujarat Siddhi Cements Ltd., without payment of duty.
2. Notice was issued to Esteco V.K. Exports, proposing to recover duty on the clinker on the ground that evidence of export was not produced within the period stipulated in the bond. The appellant, in the reply to the notice contended that cement had in fact been exported not by it, but by Saurashtra Cements Ltd. under shipping bill 414/12.7.95. The clinker had been sold by it to Saurashtra Cements. The Asst. Commissioner, whose order has been confirmed by the Commissioner(Appeals), did not accept this contention. He held that evidence of export had not been produced by the appellant and confirmed the demand. Hence this appeal.
3. The counsel for the appellant reiterates before us the contention that was raised before the Asst. Commissioner and the Commissioner (Appeals), that the cement in question has actually been exported, if not by it but by Saurashtra Cement. That being the case, no duty is payable by the appellant by application of Rule 13.
4. Rule 13 provides for permission to export goods in bond without payment of duty. Normally, it is the manufacturer of the excisable goods or another person referred, to as a merchant exporter who export them, and furnish proof of evidence of export. In the case before us, the contention is that the export by Saurashtra Cement including the quantity which was cleared by the manufacturer to the appellant for the export by it. The shipping bill tendered by Saurashtra Cement includes, among three AR 4A form covering the goods number 12 dated 14.5.95. This is the number of the AR4A forms under which the clinkers were cleared by Gujarat Siddhee Cement to the appellant. However we agree with the departmental representative that the circumstances surrounding the transaction which is stated to have been taken place between the appellant and Saurashtra cement are unclear. There is no written evidence tendered before us what exactly is the nature of the transaction. Saurashrta Cements has also not furnished anything in writing to show that part of the clinker which was exported by it was provided by the appellant. A related question that would arise is the discharge of the bond with regard to the goods that Saurashtra Cement promised to export. The quantities in bond would have to be tallied and compared with the quantities in the bond given by the appellant.
5. On these issues being put to him, the counsel for the appellant says that he will produce within two months from the receipt of the order sufficient evidence to satisfy the Asst. Commissioner that the clinkers which were exported by Saurashtra Cement included the quantity to which the demand has been issued.
6. Accordingly we allow the appeal and set aside the impugned order. The Asst. Commissioner shall after considering the evidence that the appellant produces and also the evidence that the department may produce, pass orders in accordance with law.