TMI Blog2017 (10) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... on for such alleged diversion was received - in absence of any evidence of diversion of imported goods or dispute regarding the identity of finished goods manufactured from such imported goods, the demand against the Appellant cannot be sustained. Appeal allowed - decided in favor of appellant. - Customs Appeal No.C/161/2011-CU [DB] - FINAL ORDER NO. 56544/2017 - Dated:- 14-9-2017 - Mr. S.K. Mohanty, Member (Judicial) and Mr. V.Padmanabhan, Member (Technical) Present for the Appellant : Mr.Alok Barthwal, Advocate Mr. Manish Saharan, Advocate Present for the Respondent : Mr. Yogesh Agarwal, D.R. ORDER PER: S.K. MOHANTY This appeal is directed against the impugned order dated 29.12.2010 passed by the Commissioner, Central Excise, Customs and Service Tax, Indore. 2. Brief facts of the case are that the Appellant is an export house, engaged in export of various commodities. Based upon export performance, it was issued the licences under Target Plus Scheme (TPS Licence). Against such licence, the Appellant procured the goods i.e. Steel Slabs from M/s Amulya Exports Ltd. (M/s AEL), an SEZ Unit, without payment of duty. The Appellant then sent the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into by them or the challan/documents detailing specification of job work to be carried out. The documents/title of goods i.e. invoices, L.R.s and record of receipt and disposal were not produced by the Appellant, which shows that the supporting manufacturer did not receive the goods, nor utilized such goods for conversion into resultant possible product. That the rate of ₹ 9,700/- per MT for job work is unreasonable from the angle of value addition, as the purchase price was ₹ 16,669/- per MT. The expression Target Plus licence sale and the money received is against sale of licence. The amounts paid by the Appellant to M/s AEL were rotated in accounts of M/s MIL. The imported goods have been sold in the open market as such, without following the conditions of the TPS Licence and the actual user condition was not followed. That such arrangement was made to circumvent payment of duty. Feeling aggrieved with the impugned order, the Appellant has filed this appeal before the Tribunal. 4. Sh. Manish Saharan, the ld. Advocate appearing for the appellant has referred to the various correspondences exchanged between the Appellant and M/s AEL and that between M/s MIL and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty from the Appellant. That the goods after job work, were cleared by M/s MIL on payment of duty. The goods were sold M/s Metalman, being their consignment sale agent and provided them all the invoices of sales and sell Pattis. That the Revenue has not denied any of the fact that the goods were sold on behalf of Appellant by M/s MIL in open market. The Revenue is relying upon manner of financial transaction between Appellant and M/s AEL and M/s MIL, which are of no consequence, as the facts and records clearly show that the imported goods were subjected to the job work and were cleared thereafter on behalf of Appellant. He also submits that at the time of import of goods, there was no provision of mentioning the job worker/supporting manufacturer's name on licence. The goods were imported in 2006 07, whereas the provision of endorsement of name of job worker in the licence came into effect only vide DGFT Public Notice dated 06.02.2008 and 15.02.2008. It was decided to get the job work done and hence, the request for endorsement was filed. The Bill of Entry could not be produced, on the ground that there were no provisions to endorse the same. It is undisputed fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red from any other imported goods. The letter dt. 23.02.2007 of Appellant to M/s MIL regarding receipt of sale details and to send copy of each invoice, details of VAT paid including the name of Bank Cheque details and name of sales tax office where the amount has been deposited shows the facts. (xiii) The Financial transactions on principal to principal basis. There is no condition in licence or customs laws as how the transactions were to be made. (xiv) There is no statement of transporters that the goods consigned from M/s AEL, SEZ were taken elsewhere other than M/s MIL. (xv) There is no allegation that the goods sold by M/s MIL on behalf of the Appellant were not manufactured from the subject imported goods. 5. He submitted that in view of such factual positions, it is clear that the goods were utilized as stipulated in TPS Licences and there has been no violation of the condition of the licence. He prayed for setting aside the impugned order. 6. Per contra, Shri Yogesh Agarwal, the ld. DR for the Revenue supported the impugned order and further submitted that no contract/ agreement for job work between Appellant and M/s Mil was produced and no records of job wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during investigation that the Appellant had appointed M/s MIL as consignment sale agent. Also the sale pattis containing details of sales and the details of buyers of goods were furnished to the officers. Further, we also find that even though allegation of diversion of goods has been made against the Appellant, but no investigation has been made as to where the goods were cleared or who are the buyers. None of the evidence which can show the diversion of goods has been brought on record. Though the non maintenance of job work record and transfer of payment made by Appellant to M/s AEL back to M/s MIL has been alleged, but the charges of diversion of goods cannot be substantiated on this ground alone. Further, there is no dispute about the vehicles used for transportation of imported goods from M/s AEL to M/s MIL and the clearance of finished goods from M/s MIL. The identity of the finished goods having been produced from imported raw-material has not been doubted by the authorities. Regarding job work charges of M/s MIL, except alleging that the same is not reasonable, no other evidence has been brought on record. We find that at the one hand, the allegation is made that the lic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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