Page 140 - ELT_3rd_1st May 2020_Vol 372_Part

362 EXCISE LAW TIMES [ Vol. 372

(i) when the authority has passed the order without jurisdiction and by
assuming jurisdiction which there exist none;
(ii) has exercised power in excess of jurisdiction and by overstepping or
crossing the limits of jurisdiction; or
(iii) has acted in flagrant disregard to law or rules or procedure or has
acted in violation of the principles of natural justice where no pro-
cedure is specified.
29. Having considered the contentions of both the sides and the mate-
rial placed on record and the decisions cited at the Bar, and the legal provisions
as above, it is an admitted fact that the DRI has issued the impugned notice pro-
posing recovery of excise duty refunded by the department of DGFT by way of
TED for the material supplied to 100% EOU (deemed export) as well as propos-
ing recovery of interest and imposition of penalty on the petitioners, as also on
the co-noticee. It also appears that during the adjudication proceedings, the de-
partment has sought for information from the concerned department Central
Excise regarding examination of goods by it. It also appears that the Assistant
Commissioner, Jamnagar vide his letter dated 27-10-2013 (page No. 167 of the
petition) has categorically stated that the receipt of the goods has been physically
verified, during the period February, 2009. However, it is stated therein that dur-
ing June, 2010 M/s. Apple International (100% EOU) has received copper Alloy
Ingots from M/s. Rajhans Impex Pvt. Ltd. under ARE-3 No. 09/2-6-2010, 14/19-
6-2010 and 15/19-6-2010 without CT-3 certificate and the receipt of the goods has
not been physically verified. It is further stated therein that no refund/rebate of
the duty paid on their supplies to the EOUS has been granted to M/s. Rajhans
Impex Pvt. Ltd., Jamnagar. It also reveals from the letter dated 28-8-2014 of the
Superintendent (PI), Central Excise Division, Surendranagar that the goods were
sent to M/s. Shrikrupa Exports and as per the affidavit filed on behalf of Srijan
Exports, Chandigarh (page Nos. 173-174 of the petition), the firm has received
the consignment with form No. ARE-3 and the same has been examined by the
jurisdictional Superintendent of Central Excise and the officer has visited the fac-
tory premises after verifying the contentions of the documents and the material
received, has certified the facts of receipt of the goods.
30. It appears from ARE-3 (page No. 23 onwards of the petition) that
there is signature of the Superintendent of the Central Excise, ARE-2, Suren-
dranagar and it also appears from the remarks column thereof that the clearance
is against Advance Authorization and duty debited in Cenvat.
31. It also appears from the impugned order-in-original (page No. 204
of the petition) that the date of order is shown as 31-3-2017 and date of issuance
is 5-4-2017. While referring to the letters of jurisdictional Central Excise Offices of
recipient EOUs, it has been observed therein that the concerned authority has
stated that in certain transactions, the officer has physically verified the goods. So
far as other transactions are concerned, it was not physically verified. It also ap-
pears from the impugned order that while referring to the various documents
and statements of truck owners, the authority has come to the conclusion that the
petitioners have clandestinely disposed of the goods in local market and pro-
posed confiscation of the goods and the penalty and the interest thereof.
32. It is one of the contentions of the respondent that the physical veri-
fication of the goods was not done and that EOUs were not subject to the physi-
cal verification by the Central Excise Officer as well as they did not give any in-
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