Per Archana Wadhwa : Being aggrieved with the order passed by Commissioner (Appeals), Patna the Revenue has filed the present appeal. The facts in brief as given in the Revenue's memo of appeal are as under:-

(a) M/s. TISCO (Tube Division), Jamshedpur had cleared some excisable goods for export on AR4A Nos. 120 dt. 10.11.94 and 121 dt. 11.11.94 involving C.Ex. duty of Rs. 5,43,362.55 under bond i.e. without payment of CEx. duty, but they did not produce the proof of export even after a lapse of six months as per stipulation. Accordingly a Show Cause Notice was issued to the appellant proposing therein recovery of duty of Rs. 5,43,362.55, imposition of penalty under Rule 14A and demand of interest at applicable rate.

(b) in their defence reply dt. 10.01.2000, M/s. TISCO (Tube Division) submitted the verified copies of AR4A No. 120 121 which were endorsed by the Customs officer of the concerned port that the materials were shipped in full on 12.11.94. The AR4As were duty verified by the Range Officer, Cable-II, Jamshedpur.

(c) The Deputy Commissioner, Central Excise Div-II, Jamshedpur vide O-in-O No. 26/MP/DC/2001 dtd. 30.10.2001 confirmed the demand of Rs. 5,43,362.55, imposition of penalty of Rs. 5,000/- and proportional interest on the basis of his findings that the said copies of AR 4As were nothing but photocopies of the same which were later certified by the Sector office showing particulars of clearance from the factory. On the back side of the said certified copies of AR4As, the Customs officer of the port has given a certificate that "Shipped in full". From scrutiny of the said Shipping bill, it was noticed that the same did not contain any cross-reference of the relevant AR 4A through which goods were cleared from the factory for export under Bond.

(d) The assessee being aggrieved with the said O-in-O dt. 30.10.2001, preferred on appeal before the Commissioner (Appeals), Central Excise, Patna who vide his O-in-A No. 368/JSR/C.Ex/Appeal/2002 set aside the impugned O-in-O and allowed the appeal with consequential relief.

2. The Commissioner (Appeals) has allowed the appeal filed by the respondents by observing as under:-

On perusal of case records it is observed that excisable goods covered under AR-4A's bearing Nos. 120 and 121 dt. 10.11.94 and 11.11.94 were exported in full vide endorsement made on the respective AR-4A's by the office of Commissioner of Customs, Calcutta connecting the Shipping Bill Nos. 719 dt. 7.11.94 and 207 dt. 15.11.1994 and such documents can be treated as proof for having been exported the goods by the appellant. The ratio of the case laws cited by the appellant i.e. 2001 (136) ELT 467 (Tri. Del.) and 2001 (135) ELT 1306 (Tri. Delhi) is applicable in the instant case wherein it was observed that -

"Export - Proof of Invoice, bill of lading and Shipping bills Sufficient - Non Production of AR-4s is immaterial if no material is on record to suggest either clandestine removal for home consumption or no export of goods".

"The proof of export is not necessary when proof of coverage by a shipping bill and circumstantial material can also be evidence which could be considered for coming to the decision and goods removed under AR-4, have been finally exported, that is sent out to a place outside India.

In view of the foregoing and evidences produced by the appellant, I am inclined to accept that the goods in question were exported. Ratio of aforesaid case laws are squarely applicable in the instant case.

3. The Revenue has challenged the above order on the following grounds:-

The impugned O-in-A dt. 19.8.2002 is not proper and justified in view of the fact that the copies of AR-4A submitted by the assessee are nothing but photocopies of their office copy of the same which was later certified by the Sector officer showing the particulars of clearance from the factory. On the back side of the said certified copy of AR-4A it is also noticed that the Customs Officer of the port has given a certificate that