ORDER
A.C.C. Unni, Member (J)
1. This is a reference application filed by the applicants against the Tribunal’s Final Order No. 562/99-D, dated 10-6-1999 by which the order of the Collector (Appeals) confirming the duty demand of Rs. 80,235.75 apart from a penalty of Rs. 1,000/- was upheld.
2. Appearing for the applicants Shri K.K. Gupta, ld. Advocate, contends that in the facts and circumstances of the case, the levy of duty was not warranted since the applicants had exported cut tobacco under bond under Rule 13 of the Central Excise Rules after obtaining the necessary AR 4 duly passed under counter signature of Excise Officer on the Gate Passes and after proof of export had been accepted by the Assistant Commissioner. He submits that a point of law as formulated in para 8 of the Reference Application has therefore arisen. He explains that the applicants who were manufacturers of cigarettes had obtained cut tobacco under Chapter X Procedure of the Central Excise Rules 1944 for availing of the benefit of Notification No. 356/86. Subsequently a part of the said tobacco was used by them for making a special brand of tobacco which was exported. The Department had issued a show cause notice to the applicants proposing to recover duty on 3001 kgs. of cut tobacco which was exported under bond on the ground that the same has been exported without previous approval of the proper officer in contravention of Rule 196A. It is contended on behalf of the applicants that since the goods have already been exported under bond, no duty liability is attracted. Moreover the appellants had also intimated the jurisdictional Superintendent by various letters about their intention to export a part of the tobacco. The Ruling of the Tribunal that duty liability would still exist on the exported quantity of cut tobacco would raise a point of law which may be referred to the Hon’ble High Court under Section 35G of the Central Excise Act, 1944.
3. Shri V.M. Udhoji submits that the Tribunal had clearly found that the provisions of Rule 196A had not been complied with by the applicants inasmuch as the previous approval of the proper officer had not been obtained by the appellants before clearing the goods for export. Clause (iii) of Rule 196A makes the clearance of the goods for export in the manner provided in Rule 12, 13 or 14 subject to the previous approval of the proper officer.
4. We have considered the rival submissions. We are unable to find any basis for referring the question of law raised by the applicants in para 8 of their application. Rule 196A clearly provides that if any excisable goods obtained under Rule 192 becomes surplus for any reason, applicants may with the previous approval of the proper officer cleared the goods for export in the manner provided in Rule 12, 13 or 14 as the case may be. The applicants/appellants have contended that inasmuch as they had informed the jurisdictional Superintendent by letters dated 16-3-1991,18-3-1991 and 21-3-1991 their intention to export a portion of cut-tobacco, they had satisfied the requirement of Rule 196A. We find that this point had been considered by the lower authorities as well as by the Tribunal and inasmuch as the applicant/appellants had not brought on record any material to show the previous approval of the proper officer for clearance of their goods for export, the duty was held to be recoverable. Ld. Counsel had during the submissions contended that once the goods had been exported after obtaining the counter signature of the jurisdictional Excise Officer on Gate Passes and submission of proof of export to the Assistant Commissioner, no duty can be further demanded. Inasmuch as Rule 196A (iii) makes exports subject to the previous approval of the proper officer any export made in contravention thereof will be subjected to the consequences flowing from the non-observance of the provision of Rule 196A. The avenue, if any, for re-claiming the duty by way of draw back of duty or other procedure available to the exporter cannot take away the duty liability or penalty arising from non-compliance of Rule 196A. For the aforesaid reasons, we find no merit in this Reference Application.
5. The same is accordingly dismissed.
