TMI Blog2023 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 02.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period from 13.04.2015 to 23.03.2017. The appellant filed reply to the show cause notice and the original authority confirmed the entire demand of duty amounting to Rs. 5,12,692/- along with interest and equal penalty. Aggrieved by the said order, the appellant filed the appeal before the Commissioner (Appeals) who rejected the said appeal and upheld the Order-in-Original. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant has exported the goods in compliance with the provisions and the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioning the same in the show cause notice, is bad in law because it is a settled law that a show cause notice is always the foundation upon which the department builds its case. He also submits that entire demand is bad in law as the impugned order was travelled beyond the show cause notice. He further submits that appellant has exported the goods on FOC basis in compliance with the provisions of Rule, 19 read with Notification No. 42/2002 and the appellant had bona-fide belief that he is eligible to avail Cenvat credit and the same cannot be recovered from the appellant under Rule 14 of the CC Rules. He also submits that there was no willful suppression or deliberately wrong doing by appellant. Hence, the penalty cannot be imposed in sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. After considering the submissions made by both the parties and perusal of the material on record, I find that the appellant has exported the goods on FOC basis without receipt of foreign currency. Further, I find that 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. 7. Further, I find that 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. 8. Further, perusal of form A.R.E.1 shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue s appeal is dismissed . 10. Further, I find that 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, in my view, 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 Commissioner of Central Excise Banglore Vs. Brindavan Beverages (P) Ltd cited (Supra). 11. In view of these facts, I am of the considered opinion that the impugned order is not sustainable in law, therefore, I set aside the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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