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2016 (12) TMI 1153 - AT - CustomsDemand of duty with interest and penalty u/s 112(a) of the Customs Act, 1962 - import of goods based on value based advance licences - demand raised on the ground that manufacturer, has availed the benefit of modvat/cenvat credit - Held that: - In our considered view, the impugned order is unsustainable for the reason that it does not bring forth any evidence to indicate that the original manufacturer licence holder and exporter had availed modvat credit on the inputs purchased by them. In the absence of any such evidence the allegation in the show-cause notice that the imported goods against such advance licence are liable to customs duty is unacceptable; secondly, we find that the appellant is a transferee of the licence. It is beyond any stretch of imagination to hold that the appellant should have, during the relevant period, ascertained that the manufacturer exporter had not availed the modvat credit on the inputs. Reliance placed in the case of CJ Shah & Co. Versus Commissioner of Customs (EP) , Mumbai [2016 (11) TMI 1322 - CESTAT MUMBAI], where similar issue decided and it was held that the appellant had purchased the advance licenses from the manufacturer exporter and hence, asking the appellant to evidence that original manufacturer exporter had not availed the modvat credit, is a far fetched proposition well neigh impossible act. Impugned order is set aside and the appeal is allowed - decided in favor of appellant.
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