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Customs - Case Laws
Showing 61 to 80 of 139 Records
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2016 (5) TMI 775 - DELHI HIGH COURT
Revocation of CHA licence - Illegal export - Non-completion of proceedings within stipulated period - Regulation 22(5) of CHALR, 2004 - Held that:- the time limits in the CHALR 2004 for issuance of the SCN to the CHA licence holder and completion of the inquiry within 90 days of issuance of such SCN are sacrosanct. The aforesaid time limits were engrafted into Regulation 22 of the CHALR, 2004 by a Notification No. 30/2010- Cus.(N.T.) dated 8th April, 2010. Simultaneously, the CBEC issued Circular No. 9/2010 dated 8th April 2010 clarifying the procedures governing the suspension and revocation of CHA licence. This Court has consistently emphasised the mandatory nature of the aforementioned time limits in several of its decisions.
The directions issued by the CESTAT in the impugned order, permitting the Respondents to proceed with and complete the inquiry within a further period of 60 days from the date of the impugned order of the CESTAT despite noting that the mandatory time limits under the CHALR had not been adhered to is do not sustain and is accordingly set aside. Also the SCN issued by the Respondents to the Petitioner pursuant to the order of the CESTAT, the consequential inquiry report and the order passed by the Respondents revoking the Petitioner’s licence are also held to be unsustainable in law and are hereby set aside. The CHA licence of the Petitioner that stood revoked will stand revived forthwith. - Decided in favour of petitioner
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2016 (5) TMI 774 - DELHI HIGH COURT
Validity of SCN dated 28th March 2014 and 19th February 2015 - Export of frozen boneless buffalo meat - Availed export incentives for the export of frozen buffalo meat under Duty Exemption Pass Book Scheme (‘DEPB’) and Vishesh Krishi and Gram Upaj Yojena (‘VKGUY’) - Contravention of provisions of the ITC (HS) read with Export (Quality Control and Inspection) Act, 1963 the 1992 Rules and Order issued vide S.O. 203 dated 15th January 1993 - Confiscation in lieu of redemption fine and imposition of penalty.
Appellant submitted that in respect of the very same issue which forms the subject matter of the impugned SCNs, the Dy. DGFT passed a detailed adjudication order exonerating the Petitioners from any violation of the FTDR Act or the FTR Rules. Therefore, on the same set of allegations no further SCN could have been issued by Respondent No. 1, pointed out that the alleged violation of the Act as mentioned in the SCN is consequent upon the purported violation of the FTDR Act, of which the Petitioners had been exonerated by the DGFT after a detailed enquiry. Therefore, the very exercise of issuing the impugned SCNs stood vitiated.
Held that:- the impugned SCNs do not refer to alleged violations of the Act that are not consequential upon the alleged violations of the FTDR Act or FTR Rules. As already noticed, this aspect has already been examined thoroughly by the Dy DGFT while passing the order dated 24th September 2012. In fact, as can be seen from the body of the order, the Dy DGFT during the course of those proceedings consulted the Customs authorities and sought their clarifications on various aspects which have been referred to hereinbefore.
Respondents are unable to point out any portion of the impugned SCNs which is any different from the SCN and the consequent adjudication order passed by the Dy. DGFT. In the circumstances, the impugned SCNs issued to the Petitioners, more than one and half years after the Dy DGFT exonerated them of the very same allegations, is nothing but a harassment of the Petitioners and an abuse of the process of law. Therefore, the SCN dated 28th March 2014 issued by the Commissioner, Central Excise, Noida and the SCN dated 19th February 2015 issued by Commissioner of Customs (Export), Navi Mumbai, Maharashtra and all the proceedings consequent thereto are quashed. - Decided in favour of petitioner
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2016 (5) TMI 739 - CESTAT BANGALORE
Valuation - Whether the ullage survey report has to be taken into consideration for the purpose of calculating the Customs duty or is it the actual quantity of imported oil at the shore which is to be considered - Held that:- the issue stands decided in favour of the assesse by a recent decision of the Hob’ble Supreme Court in the case of Mangalore Refinery & Petrochemicals Ltd. Vs. C.C. [2015 (9) TMI 245 - SUPREME COURT]. Therefore, by relying on the same, no import duty can be levied on the goods lost, pilfered or destroyed during transportation and it is the actual quantity received at the shore which would attract duty.
Valuation - Whether the ship demurrage charges paid by the assesse is required to be included in the transaction value or not - Held that:- the issue stands decided by the Larger Bench decision of the Tribunal in the case of Commissioner of Customs, Jamnagar Vs. Grasim Industries Ltd. [2013 (10) TMI 246 - CESTAT AHMEDABAD]. Therefore, by relying on the same, the ship demurrage charges were includable in the assessable value for discharge of Customs duty only with effect from the date of coming into force of 2007 Valuation Rules. Inasmuch as in the present appeals, the period is much prior to the above date, so, we hold in favour of the assessee. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 738 - CESTAT BANGALORE
Relinquishment of goods - Import of electric goods during 1995-96 - cleared under warehousing bill of entry and kept in warehouse - Seeked permission for re-export of goods after paying the penalties imposed - Appellant contended that Customs all along have been careless and the result has been that their part goods have been auctioned without any intimation to them and that remaining goods of 12 consignments were also not in the condition to be re-exported as they had all been opened as the goods were being readied to be auctioned.
Held that:- the request of the appellant deserves to be accepted as there cannot be any purpose served by re-exporting such goods as these goods are electric goods which have become obsolete by now. There has not been any default on the part of appellant as a reason for not allowing them relinquishment of the title of the goods, when the appellants had paid all the rents, interest and other charges and penalties which are payable as per provisions of Section 68 of the Customs Act 1962. - Decided in favour of appellant
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2016 (5) TMI 737 - CESTAT AHMEDABAD
Imposition of Redemption fine and penalty - Re-determination of assessable value - Proper classification of goods i.e. Indian Hand knotted Woollen Carpet - No intention to evade any duty or violate any license prohibitions - Held that:- the issue of proper classification of goods is to be decided and it is seen that the department has done so on physical examination of the sample drawn, and on the basis of an earlier test report of similar goods. As regards valuation, it is observed that the Dept. has made market inquiries and the final value was re-determined on the basis of local prices and ECDB data. It is observed that ECDB data relied upon is not for identical goods. It is for similar goods of 50% wool, and/or 80% jute and 20% cotton. Hence, the case not found to be fit to warrant imposition of redemption fine under Section 125 or penalisation under the provisions of Section 114 of the Customs Act 1962. - Decided in favour of appellant
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2016 (5) TMI 736 - CESTAT CHENNAI
Refund - Entire set of documents with the correlation of the goods sold as per goods arrived submitted but not considered by either of the authorities below - Held that:- once the documents stated above are on record it is the duty of the authority to give proper finding on each document which is claimed to be supporting document for the refund and pass appropriate order. When that is not done that has resulted in violation of natural justice. Violation of natural justice goes to the root of the matter which is incurable at the appellate stage. Learned Commissioner (Appeals) is directed to afford reasonable opportunity of hearing to the appellant and upon hearing on each document available on record, shall pass appropriate order. Also learned Commissioner (Appeals) having co-extensive and co-terminus power shall examine the entire matter threadbare and shall pass the order without sending the matter back to the adjudicating authority.
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2016 (5) TMI 671 - CESTAT NEW DELHI
Period of limitation - Revokation of CHA licence and forfeiture of security deposit - Regulation 20 of the CHALR, 2004 - Mis-declaration of value as well as description - Held that:- the show cause notice proposing revocation has been issued on 12.07.2013, well beyond the ninety days limit prescribed for the same in regulation 22(1). The inquiry report which is mandated to be completed within ninety days from the date of the show cause notice has been filed only on 27.11.2014, very much beyond the ninety days time limit prescribed for the same. Finally the impugned order has been passed within ninety days from the date of inquiry report. However, the overall time taken were completion of regular proceeding is a period of 23 months, which is much beyond the allowed total duration of nine months. Therefore, by following the decision of Hon'ble High Court of Madras in the case of A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennai [2014 (9) TMI 237 - MADRAS HIGH COURT], which directly dealt with CBLR and sanctity time limit under the regulation, the order of the lower authority which was issued without adhering to the time schedule is set aside. Decided in favour of appellant
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2016 (5) TMI 670 - CESTAT MUMBAI
Demand of Central Excise duty and Customs duty - Raw materials imported duty-free for export of the finished goods - diversion of consignments of goods meant for export to domestic area - Held that:- adjudicating authority has not considered the explanations given and the defence taken by the appellants before him while deciding the case. It has not even recorded a single line of reasoning as to why he is not accepting the defence raised by the appellants. It is also to be noted that there is no reasoning given as to how the adjudicating authority has come to a conclusion that bulk drugs cleared from M/s Tini Pharma Ltd. were not exported but something else was exported in respect of the consignments which were already cleared for export.
In the absence of any reasoning or the findings, it is not possible for the Tribunal to go into the issue raised. In the interest of justice, it is found that the impugned order needs to be set aside and the matter be remitted to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice. - Appeal disposed of by way of remand
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2016 (5) TMI 669 - CESTAT MUMBAI
Imposition of penalty - Section 112 of the Customs Act, 1962 - Confiscation of goods - Import of duty free goods under Import Passbook Scheme and diverted the same to local market - defrauding the Government of its legitimate revenue of Customs duty - Held that:- the proceeding of demand of duty and confiscation was made against the main party M/s. Orient Arts & Crafts, wherein finally the demand of duty and confiscation was dropped, accordingly the present appellant is also not liable for penalty under Section 112 of the Customs Act, 1962. - Decided in favour of appellant
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2016 (5) TMI 668 - CESTAT NEW DELHI
Whether an assessee can file an appeal against assessment made in the bills of entries, once he pays duty on the same and clears the goods, observed that acceptance of enhanced value proposed by the Department by an assessee does not preclude him from challenging the enhancement by way of appeal - Import of fabrics.
Held that:- provision of Section 17 does not preclude an assessee from filing an appeal against the enhancement. The issue is no more res-integra and stands settled by various decisions. It is a common case for the importers that on account of immediate requirement of imported goods or to avoid demurrage charges, such goods are cleared immediately on payment of duty on the enhanced value. Section 17 is to the effect that where such enhancement of value is accepted by the importer, there is no need for the Proper Officer to pass a reasoned order. This does not mean that the importer is precluded from filing appeal against the assessment order. The said Section would apply only in those cases where the assessee is not aggrieved by the enhancement and has accepted such enhancement in which case the Section requires that no reasoned order needs to be passed by the Proper Officer. The said section reflects upon the intention of the Legislature to avoid passing of the reasoned order and to unnecessary introduce litigation. As such, no merits found in the Revenue's stand that an importer’s right to file an appeal stands curtailed down on his clearing the goods on payment of duty on the enhanced value.
No reasons provided for enhancement as well as rejection of transaction value - Seems to have been done on the basis of a DRI Alert dated 09/5/2011 - Respondent contended that DRI Circular, which stands issued after considering the value of the goods on which they should be imported on the basis of detailed investigation, should have been adopted - Held that:- Commissioner (Appeals) has gone into detailed examination of the provisions of Section 14 as also the Customs Valuation [Determination of Value of Imported Goods] Rules, 2007. As rightly observed by him, for adopting the provision of Customs Valuation Rule, the transaction value is required to be rejected as incorrect value. There being no evidence to show that the importer has paid over and above than the transaction value, to the seller of the goods, there is virtually no reasons to reject the transaction value. It is also a settled law that DRI Alerts cannot be adopted as a reason for enhancing the value. Therefore, no infirmity found in the views adopted by Commissioner (Appeals) so as to interfere in the impugned order. - Decided against the revenue
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2016 (5) TMI 652 - MADRAS HIGH COURT
Seeking direction for release of cargo without insisting for any payment towards demurrage charges and refund erroneously paid by the petitioner towards demurrage charges - Import of 13,050 metric tons of Muriate of Potash from Israel - Cargo off-loaded from Vessel and stored in E1 Shed on transit basis in the Port area. Pursuant to the order of the Customs Department, the petitioner cleared 80% of the cargo and remaining 20% of the cargo had to be detained by the petitioner in the transit shed on account of the direction issued by the Customs Department. Petitioner contended that 20% of the cargo could not be moved by them on account of restraint imposed by the Customs Authorities, therefore, they are entitled for 45 free days.
Held that:- when the 3rd respondent, Customs Department had specifically stated that the goods were detained for conducting verification and tests and that the detained goods were released on 13.01.2016 after the receipt of the report from the Regional Fertilizer Control Laboratory on 04.01.2016, the contention of the respondents 1 & 2 that unless the goods were detained by the Customs Department, the petitioner is liable to pay the demurrage charges, cannot be accepted. When the counter filed by the Customs Department clearly says that the goods were detained, the respondents 1 & 2 cannot take a different stand stating that the goods were not detained by the Customs Department. Even by the order of the Customs Department, they ordered for the release of only 80% of the cargo and 20% of the cargo was not released by the said order. Therefore, it also implies that 20% of the goods were detained by the Customs Department without issuing an order for release. This stand of the petitioner is also now supported by the counter filed by the Customs Department.
When the goods were released only on 13.01.2016, the petitioner approached the respondents on the same day for the release of the goods, however, the respondents 1 & 2 levied demurrage charges stating that there was no order of detention. Since it is clear that the goods were detained by the Customs Department, the stand taken by the respondents 1 & 2 cannot be accepted. The respondents 1 & 2 are liable to release the cargo stored in E1 Shed without insisting for any payment towards demurrage charges. The respondents 1 & 2 should also refund the amount received by them towards the demurrage charges for the 20% of the cargo.
Therefore, the respondents are directed to release the cargo stored in E1 Shed without insisting for any payment towards demurrage charges and also to refund the amount paid by the petitioner towards demurrage charges for 20% of the cargo, which was not released pursuant to the order dated 07.12.2015. - Petition disposed of
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2016 (5) TMI 651 - CESTAT MUMBAI
Stay of recovery of redemption fine - Confiscation in lieu of redemption fine - Seizure of imported yacht - Mis-declaration - Held that:- the Tribunal has no power to entertain any stay petition against impugned order. The provisions of Section 129E of the Customs Act, 1962, as applicable in this case specifically say so. In Section 129E ibid, there is no provision for filing any application for stay of the impugned order or for waiver of pre-deposit of any amount. If the importer complies with the provisions as reproduced here-in-above there is no requirement of filing any applications for any reason. In the absence of any statutory provision this miscellaneous application cannot be entertained.
Secondly, it is found that the provisions of erstwhile Section 129E of Customs Act, 1962 had a proviso for filing an application for waiver of any amount. Exercising these powers, Tribunal used to grant waiver or stay of the impugned order, even in respect of the redemption fine imposed. By invoking inherent powers of the Tribunal orders were passed for staying operation in respect of redemption fine. As there are no provisions, we do not find any merits in the miscellaneous application. - Decided against the applicant
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2016 (5) TMI 650 - CESTAT ALLAHABAD
Imposition of redemption fine and penalty - Section 112 of the Customs Act, 1962 - Import of 19,595 kgs of California Inshell Almonds - sample does not conform to the standards laid down under Regulation No. 2.3.47(5) of Food Safety and Standards Regulations, 2011 - NOC was refused on analysis by FSSAI - Appellant stated that the sample was tested and was found fit by an authorized testing agency in USA, namely, USDA and the second test was got done from another lab, i.e. FSA Lab in USA.
Held that:- there is no malafide intention on the part of the appellant. It is a matter of fact that two laboratories in the country of export found that the goods under export were in good condition. It is also a matter of fact that a period of more than two months had expired from the date of shipping to the date of sending the sample for testing and as such, during this period, the goods suffered damage and no malafide is attributable to the appellants. Therefore, the redemption fine and penalty are set aside. - Decided in favour of appellant with consequential benefit
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2016 (5) TMI 649 - CESTAT MUMBAI
Imposition of penalty on the basis of third party statement - Confiscation of goods as prohibited goods - Seizure of 9.340 tons of wood logs purported to be red sanders - samples sent were not of red sanders, goods were wood logs as against declared goods i.e. Plastic pipe in the export documents - Held that:- on the basis of statements of various persons involved in attempt of fraudulent export of wood logs as well as confessionary statement of the appellant, it is very clear that role of the appellant in illegal activity is clearly established therefore since prohibited goods liable for confiscation, appellant is also liable for penalty under Section 114(i) and 114AA. On perusal of the Commissioner's order, it is found that he has given proper findings after proper appreciation of facts. Therefore, both the lower authorities correctly and legally imposed penalty under Section 114(i) and 114AA. As regard the quantum of penalty, it is observed that value of the goods i.e. wood logs attempted to be smuggled is ₹ 1.40 Lacs. Considering the value, I am of the view that penalty imposed by the lower authorities is on higher side, therefore in my view penalty of ₹ 50,000/- appears to be proper and reasonable and therefore reduced the penalty from ₹ 1 lacs to ₹ 50,000/-. - Decided partly in favour of appellant
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2016 (5) TMI 602 - CESTAT NEW DELHI
Revokation of CHA licence - Disagreement with the enquiry report - advice to the client to comply with the provisions of Customs Act and exercise of due diligence to ascertain the correctness of any information with reference to work relating to clearance of cargo - Import of deodorants, perfumes - Held that:- the enquiry report analyzed various evidences with reference to these allegations and found that they are not proved. The enquiry report in full was communicated to the appellant by the Assistant Commissioner. A perusal of the said communication indicates that it enclosed the enquiry report and requested the appellant to submit their representation, if any, within 30 days in terms of Regulation 20(6) of CBLR, 2013. There is no indication or reference to any possible difference of opinion with reference to the enquiry report as entertained by the Original Authority. In other words, the enquiry report which exonerated the appellant totally, was communicated to the appellant for representation.
Apparently, the appellant gave a reply reiterating their defence and supporting the findings of the Inquiry Officer. There is nothing to indicate that the appellant has been put to notice on the disagreement of the Original Authority with any part of the enquiry report. Therefore, it is clear that the present impugned order issued without indicating the disagreement with the enquiry report and getting the response of the appellant, is in clear violation of principles of natural justice by referring the decision of Hon'ble Bombay High Court in the case of Commissioner of Customs (General) vs. Dominic and Co. [2015 (8) TMI 142 - BOMBAY HIGH COURT]. The impugned order is unsustainable and set aside. - Decided in favour of appellant
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2016 (5) TMI 601 - CESTAT KOLKATA
Confiscation of goods under section 113(c) and imposition of penalty under Sec 114 of the Customs Act 1962 - Paddy/Rice stored by the appellants in two godowns situated close to the Indo-Nepal border - Appellant contended that goods seized from the godowns situated in India can at best be a preparation but can not be said to be an act indicating attempt to export the same out of India.
Held that:- there are two statements of Sh. Vijay Kumar Bajaj & Smt Soni Jaiswal that the seized goods were meant for illegal export to Nepal. It is also observed that there are documentary evidences to the effect that on earlier occasions also appellants have illegally exported similar goods to certain Rice Mills in Nepal on tractor trolleys. There are also documentary evidence to that effect collected by investigation during search. Denying the relevance of these documents later on can only be considered as an after thought on the part of the appellants. Appellants did not cross examine the persons whose statements were implicating them. There is no reason to brush aside the statement of Smt Soni Jaiswal, wife of Sh. Umeshwar Prasad Jaiswal to the effect that the seized goods were meant for export to Nepal.
Further the words dutiable or prohibited existing in Sec-113 (c) have been deleted with effect from 14.05.2003, making the provision applicable to any goods brought near to the land fromties for the purpose of being exported. Therefore, on the basis of the existing evidences in these proceedings the activities of the appellants have to be considered as an “attempt” to export and not a simple “preparation.” This bench, therefore, does not find it proper to interfere with the orders passed by the first appellate authority which is based on cogent reasoning. - Decided against the appellant
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2016 (5) TMI 600 - CESTAT ALLAHABAD
Confiscation of goods and imposition of penalty - Section 112 of the Act - Import of mobile phones of different brands, both Indian and Chinese - Mobile phones detained from the shop premises of appellant are smuggled and not legally imported as per revenue.
Held that:- it is found that this is a new case being made out by the revenue at this stage, that the revenue had verified the documents, like bill of entry produced by the sellers of the respondents, wherein the import documents verified by the revenue and found to be correct. In absence of any adverse observation in the show cause notice that the goods in question do not relate to the import documents produced in the course of investigation, no new case can be made out before the Tribunal in the second appeal. Further, it is also found that the ld. Commissioner (Appeals) has dealt with the issue in detail and recorded the findings. Therefore, there is no error in the findings of the ld. Commissioner (Appeals)and accordingly, the impugned order is upheld. - Decided against the revenue
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2016 (5) TMI 599 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE, MUMBAI
Settlement of a case - Demand of Custom duty and imposition of penalty - Section 112, 114A & 114AA of Custom Act, 1962 - Evasion of Special Additional Duty - Goods imported through Free Trade Warehousing Zone without payment of SAD by claiming exemption under Notification No. 45/2005-Customs, dated 16-5-2005 and were used in their factory for manufacturing of PVC flooring - Clearances made during the period from 12-3-2013 to 30-7-2013 - Revenue objected that the application is inadmissible because of the bar provided in Section 127L.
Held that:- the words and phrases used in the Section 127L are “shall not be entitled to apply”. The bar is on applying subsequent to order of settlement imposing the penalty. The applicant’s case is not clearly hit by this bar as in their case the present application has been filed before the order imposing penalty was passed. Thus, the Bench’s earlier order allowing the application to be proceeded with is unaffected.
Whether the benefit of exemption from SAD under this notification would be available when a DTA unit imports goods and routes it through SEZ/FTWZ for self-consumption i.e. in the nature of stock transfer from SEZ/FTWZ” - Held that:- the Board through circular 44/2013, dated 30-12-2013 has clarified that the benefit of the notification is not available to the goods which are for self-consumption and consequently SAD is attracted. In the instant case, the goods were for self-consumption and condition of the notification was not satisfied. As such the provisions of Section 111(o) get attracted rendering the liable to confiscation and the applicant/co-applicant liable to penalty under Section 112. The goods are not available for confiscation but the applicant/co-applicant are liable to penalty under Section 112. As there was no misstatement, fraud, etc., neither Section 114A nor Section 114AA is attracted.
Quantum of penalty under Section 112 - Held that:- the opening paragraph of the Board’s circular confirms the claim of the applicant that there was confusion about the applicability of SAD. This fact will have a bearing on the quantum of penalty. The immunities to the applicant and the co-applicant are granted under Section 127H(1) of the Act. Their attention is also invited to the provisions of sub-section (2) and (3) of Section 127H ibid. This order shall be void and immunities withdrawn if the Bench, at any time finds that the applicant had concealed any particular material from the Commission or had given false evidence or had obtained this order by fraud or misrepresentation of facts.
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2016 (5) TMI 598 - BOMBAY HIGH COURT
Seeking declaration for the respondent's action violating the petitioner's fundamental right and Constitutional mandate - Article 19(1)(g) and Article 14 of the Constitution of India - not allowing the normal operation of the Customs Broker License as per order of CESTAT - prohibitory orders.
Held that:- interest of justice would be served, if we direct the Commissioner at Kanpur to conclude the proceedings as expeditiously as possible and within two months from the date of receipt of a copy of this order. If the proceedings could not be concluded for reasons other than non cooperation of the petitioner, then, the Commissioner may consider the petitioner’s request for restoration of the license, pending enquiry and such application shall be dealt with on its own merits and in accordance with law without being uninfluenced by a prior prohibitive order and pendency of the enquiry. We also clarify that the enquiry shall be concluded by the Commissioner by applying his mind independently to the charges in the show cause notice, the explanation given by the petitioner thereto and the documents and materials relied upon by the petitioner. The Commissioner should not influence himself by any preliminary enquiries or findings in any preliminary report. Equally, the Commissioner is free to decide the issue uninfluenced by any prima facie or tentative observation of the Tribunal. - Petition disposed of
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2016 (5) TMI 558 - CESTAT KOLKATA
Eligibility of drawback and imposition of penalty - Section 114AA of the Customs Act, 1962 - Export of fabrics to Bangladesh to perform the job of CMT (Cutting/Making/Trimming) to make finished garments exported directly to Europe from Bangladesh - Sale proceeds are received by the appellant from third country from the buyer of the garments - Drawback disallowed as export of fabrics to Bangladesh does not involve sales and no foreign exchange remittances have come to the Appellant from its job workers in Bangladesh.
Held that:- Rule 16A of DBK Rules, 1995 does refer to recovery of amount of DBK where sale proceeds are not realized. At the same time Rule 12(1)(b) and Rule 13(2)(i) also indicate that export of goods need not always be on a sale invoice or a Letter of Credit (LC). The above provisions convey that goods could be exported without a sale. The sale proceeds of the finished garments are received from the third country buyer and is received by the appellant directly from the garment purchaser which is more than the value of fabrics at which drawback is claimed. In the present case the products meant to realize foreign exchange are the 'garments' which are manufactured through job-workers in Bangladesh. The pattern of sale has been made clear by the exporter at the time of exports. Under the existing factual matrix of the case it can not be said that proceeds of the fabrics exported have not been realized and accordingly it is held that provisions of Rule 16A of the DBK Rules are not attracted.
Drawback disallowed because as per the reports of the jurisdictional Central Excise officers the supporting manufactures of fabrics do not exist - Held that:- appellant has produced certificates from the jurisdictional Central Excise officers to the effect that supporting manufacturers of exported fabrics are not registered in their jurisdiction. If a manufacturing unit is exempted then it may not be registered with the jurisdictional Central Excise authorities. However, non-registration of units do not necessarily mean that such non-registered units are not existing. On this issue exporters were facing difficulty and CBEC vide Circular No.16/2009-Customs dated 25.05.2009 gave the clarification. Here, there is no point of questioning the Cenvat Credit taken by manufacturers of fabrics as those are not registered with Central Excise, which means no Cenvat Credit on inputs has been taken. Therefore, the Order-in-Original is set aside. - Decided in favour of appellant with consequential relief
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