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2023 (9) TMI 866 - AT - Central ExciseCENVAT Credit - goods exported on FOC basis where no sale proceeds were received during the period from 13.04.2015 to 23.03.2017 - goods exported free of cost, being sent for promotional purposes - scope of SCN - HELD THAT:- The appellant has exported the goods on FOC basis without receipt of foreign currency. Further, there is no condition under Rule 19 of Central Excise Rules, 2002 read with Notification 42/2002-CE (N.T.) dated 26.06.2001 mandating receipt of foreign currency in case of FOC exports by an exporter - at the time of export no objection was raised by the department neither at the time of export nor at the time of submission of document with Central Excise department that receipt of sale proceedings in foreign currency is required for FOC exports. Further, perusal of form A.R.E.1 shows that the export goods were having no commercial value and the value was declared for customs excise purpose only and no sale proceeds were realized against the exports. Further, in the invoices also it is clearly mentioned that the impugned goods are for export, free of cost being sent for promotional purposes as trade sample on no returnable basis. The impugned order relying upon the RBI Master Circular No. 14/2012-13 dated. 02.07.2012 is not justified because there is no allegation regarding the same in the show cause notice which is the foundation upon which the department has to build its case. Therefore, the entire demand is bad in law at the impugned order has travelled beyond the show cause notice which cannot be done in view of the decision of the Supreme Court in the case of CCOMMISSIONER OF C. EX., BANGALORE VERSUS BRINDAVAN BEVERAGES (P) LTD. [2007 (6) TMI 4 - SUPREME COURT]. The impugned order is not sustainable in law - Appeal allowed.
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