ORDER
P.C. Jain, Vice President
1. Briefly stated facts of this case are as follows :-
1.1 The appellants herein exported goods to Nepal under Rule 13(2) of the Central Excise Rules read with Notification No. 150/81, dated 29-7-1981 (as amended). The said notification envisages the following conditions :-
(1) the payment for the goods shall be in freely convertible currency;
(2) the importer in Nepal shall open an irrevocable letter of credit in favour of the exporter in India, before the export takes place;
(3) the exporter shall execute a bond in proper Form under Rule 13 of the Central Excise Rules, 1944 and for such amount and in such manner as may be determined by the Collector of Central Excise having jurisdiction over the factory or the warehouse from where the goods are removed for export to Nepal;
(4) the exporter shall furnish a certificate to Appendix 1 to this notification from the Reserve Bank of India or any other Bank authorised to deal in foreign exchange by the Reserve Bank showing that full payment for the goods has been duly received in freely convertible currency. On receipt of such a certificate and on the satisfaction of the other conditions as laid down in the bond referred to in condition (3), the Collector of Central Excise shall discharge the exporter of his liabilities under the bond;
(5) the special procedure set out in Appendix II to this notification shall be followed.
1.2. In terms of the bond executed by the appellants herein they were asked to produce proof of export as also the certificate of the bank concerned that the payment for the goods has been received in freely convertible currency as being one of the conditions in the notification, as mentioned above. That cond ition has not been fulfilled by the appellants and hence the confirmation of demand of duty of Rs. 1,55,300/- (BED + SED) under Rule 9(2) read with Suction 11A(1) of the Central Excise Act, 1944. Hence this appeal by the appellants herein.
2. Learned Advocate, Shri Koshy Chandy for the appellants has submitted that the goods were cleared under bond with the full knowledge of the department concerned. No condition was laid at the time of clearance that the payment for the goods shall be in freely convertible currency. To impose that condition now after having been allowed the clearance by the departmental officers themselves, it is not appropriate to impose the condition at this stage.
2.1. Learned Advocate further submits that in any case the goods have been exported to Nepal which is a foreign country. Thus, the demand of duty on the goods is bad in law. Therefore, the demand of duty is not sustainable.
3. Learned JDR, Shri V.M. Udhoji opposing the contentions submits that in case of export to Nepal duty is required to be paid under the ordinary procedure inasmuch as in terms of the Indo-Nepal Treaty duty is paid to the Government of his Majesty of Nepal. A special procedure for export of goods under bond has been provided in terms of the said Treaty provided the payment is received in freely convertible currency. It is not disputed that the goods were exported to Nepal in terms of the said Notification No. 150/81-C.E., dated 29-7-1981. It is also not disputed that the appellants have not received any freely convertible currency. Learned JDR, therefore, submits that the conditions of the Notification have not been fulfilled. Therefore, demand of duty is clearly sustainable.
4. We have carefully considered the pleas advanced from boths sides. We are not impressed by the pleas of the learned Advocate. Having chosen to export the goods to Nepal in terms of Rule 13(2) of the Central Excise Rules, 1944 and read with Notification No. 150/81-C.E., dated 29-7-1981, it is not tenable for the appellants to submit that they will not comply with the conditions of the Notification, namely, that the payment for the goods shall be received in freely convertible currency. We, therefore, do not find any substance in the pleas of the appellants. Consequently, we reject the appeal.