By TIOL News Service

MUMBAI, MAY 04, 2017: THE facts are that the appellants have cleared excisable goods without payment of duty against CT-3 certificate on ARE-3 form.

The case of the department is that the appellants have not produced the re-warehousing certificate in time and, therefore, they are liable to pay duty in terms of Rule 20(4) of CER, 2002.

Demand was confirmed by the original authority and the Commissioner (Appeals) upheld the same.

The appellants are in appeal before the CESTAT.

In their appeal, it is submitted that they could not produce the re-warehousing certificates as the same were not provided by the consignee; however, they have produced evidence that the goods have been received by the consignee and the payment against the same was also received. It is further argued that since receipt of the goods is not under dispute, the demand cannot be raised from the consignor as per sub-rule (4) of Rule 20 of CER, 2002. Inasmuch as in the facts of the present case, Rule 20(3) applies and according to which if at all there is any lapse and duty is recoverable, the same must be recovered from the consignee of the goods as the bond is executed by the consignee and CT-3 was issued against the bond.

The AR reiterated the findings of the impugned order.

The Bench observed –

"4. … I find that there is no dispute in the fact that the re-warehousing certificate was not produced by the appellants. However, there is no dispute that the goods were received by the consignee on the basis of the evidence produced by them. In such case, if at all any duty has to be recovered it can be recovered from the consignee of the goods in terms of Rule 20(3) of Central Excise Rules, 2002. The duty can be demanded from the consignor under this procedure, only in a case where goods are diverted without delivery of the goods to the consignee against CT-3 certificate, which is not the case here. Therefore, the demands raised against the appellants are not sustainable. The appellants admittedly did not produce re-warehousing certificate, which is requirement under the Rule. The non-production of re-warehousing is contravention of the provisions. Therefore, the appellants are liable for penalty of Rs.5000/- under Rule 27 of Central Excise Rules, 2002. However, the duty demand and interest thereon are set aside."

The appeal was partly allowed.

(See 2017-TIOL-1490-CESTAT-MUM)