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2015 (11) TMI 666 - AT - Central ExciseRefund claim - Denial of CENVAT Credit - Capital goods - non-production of proof of exports - Held that:- Issue of show-cause notice well after the submission of proof of exports under various letters written by the appellant to the department is most unfortunate. The learned Counsel states that even the 10 ARE-1s selected for random check are not related to the ARE-1s which covered export through merchant exporters. These ARE-1s actually relate to the export to the EOUs. Therefore, we find that the matter needs to be examined afresh by the adjudicating authority taking into account all documents submitted by the appellant. The adjudicating authority while deciding the case afresh must also visit various judicial pronouncements referred by the learned Counsel to the effect that it is the merchant exporter who is responsible for accountal of the goods when the goods are no longer in the control of the consigner. Even in the matter of penalty, the judgements in the case of Jay Jagdish Sugar (2004 (3) TMI 604 - CESTAT, MUMBAI) and Shagun Processors (2008 (12) TMI 111 - CESTAT AHMEDABAD) hold that the responsibility rests on the merchant exporter. The revenue has not been able to explain how Rule 20 (3) is not applicable. Rule 20 (3) states that the responsibility for payment of duty on the goods that are removed from the factory of production to a warehouse or from one warehouse to other warehouse shall be on the consignee. Even if Rule 20 (4) which casts the responsibility upon the consigner is considered it is for the Revenue to seek documents from the Superintendent in charge of the consignee as laid down in Board Circular No.851/9/2007-CX dated 30/05/2007. In the absence of any such verification, the demand of duty cannot be sustained. The time limitation for determining the refund will start from the date of finalisation of the issue of demand of duty. Further, the fact that the proof of export was available to the department before issue of show-cause notice means that the amount was forcibly recovered from them and can only be termed as deposit and can definitely not be termed as an amount deposited towards excise duty. Reliance is placed on CCE Vs. Ucal Fuel Systems Ltd. - [2011 (9) TMI 903 - Madras High Court]. Therefore, refund is not hit by time bar. - Matter remanded back - Appeal disposed of.
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