Page 129 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] RAJHANS IMPEX PVT. LTD. v. UNION OF INDIA 351

respondents and has stated that the show cause notice has only been issued on
the basis of the statement of the some of truck drivers and has stated that the In-
vestigating Agency has ignored the statement of the transporter who had admit-
ted that the materials physically transported and has produced relevant docu-
ments. The petitioner reiterated his contention that the advance authorizations
issued by the department of DGFT are still valid and are neither declared as void
nor cancelled by the authority. It is also stated that the authority has ignored the
fact that the said authorizations are used to importation of material only after
obligations are complied with. It is further stated that the department has ig-
nored the fact that the Central Excise Duty demanded on the so-called clandes-
tine clearance is nothing but duty paid clearance and hence, no duty can be de-
manded and, therefore, it is beyond jurisdiction of the respondents.
7. Heard Mr. Mihir Joshi, Learned Senior Counsel with Mr. Paresh
Sheth, Learned Counsel for the petitioners and Ms. Shruti Pathak, Learned
Counsel for respondent No. 2 at length. Perused the materials placed on record
and the decisions cited at the Bar.
8. Mr. Mihir Joshi, Learned Senior Counsel with Mr. Paresh Sheth,
Learned Counsel for the petitioners has submitted the same facts which are nar-
rated in the petition and has submitted that the Custom Authority passed the
order for recovery of duty which was availed by the petitioners from DGFT and
the Custom Authority has also sought for confiscation of the goods. He has sub-
mitted that the petitioners have imported goods under the advance authorization
and they have exported the goods and discharged their liability. He has submit-
ted that the petitioners have sold the goods through CTC procedure and pay-
ment of duty i.e. Terminal Excise Duty.
8.1 Mr. Mihir Joshi, Learned Senior Counsel has submitted that on 5-9-
2013, the officer from the Director of Revenue Intelligence visited the factory
premises and started investigation on system of clearance from the factory and
impounded certain documents. He has submitted that on 10-4-2015, the depart-
ment has issued show cause notice proposing (a) recovery of custom duty on the
material imported through the port of Mundra as well as Kandla; (b) recovery of
excise duty refunded by the department of DGFT by way of Terminal Excuse
Duty for the material supplied to 100% EOU (deemed export) and (c) recovery of
interest and imposition of penalty on the petitioners as also on the co-noticee.
The actions so proposed are for clearances made to 100% EOU’s to Apple Inter-
national, Jamnagar, Jakap Metind Pvt. Ltd., Jamnagar, Shrijan Exports, Chandi-
garh and Shrijikrupa Exports, Surendranagar. He has further submitted that the
hearing was fixed on 5-10-2015 by the adjudicating authority and during such
proceedings, an attention was drawn to the fact that the transportation of goods
to Shrijikrupa Export and to Srijan Export were through the transport agency and
the authorized person of the said agency has accepted transportation of goods
and has also produced relevant evidence before the investigation agency, but are
not relied upon in show cause notice. He has also submitted that the attention
was also drawn to the endorsement made by the Superintendent of Central Ex-
cise, Surendragar on the body of Form No. ARE-3, wherein it is stated that in
terms of Circular No. 88/89-Cus. physical verification is not required.
8.2 While referring to the communication and the proceedings of hear-
ing by the adjudicating authority, Mr. Joshi, Learned Senior Counsel has also
submitted that the adjudicating authority has ignored the fact that they are de-
EXCISE LAW TIMES  1st May 2020  129