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2015 (2) TMI 513 - CESTAT MUMBAIBenefit of Notification No. 203/92-Cus dated 19/05/2002 - violation of the condition V(A) of Notification No. 203/92-Cus - Held that:- In the show cause notice, the allegations made and the Commissioner confirmed in adjudication holding that the transferor-exporter has availed MODVAT credit and therefore, the appellant is not entitled for the exemption Notification No. 203/92-Cus. It is observed that neither in the show cause notice nor in the impugned order, the allegation of availment of MODVAT credit by the transferee of the licence was supported by any evidence from which any inference can be drawn that the exporter has availed MODVAT credit. Though the adjudicating authority has recorded that there is a declaration of non-availment of MODVAT credit by the exporter on the shipping bill/AR4s. However, it could not be established by the adjudicating authority by adducing any evidence that the declaration is incorrect or false. In such a situation, it cannot be concluded that the exporter has availed input stage MODVAT credit in terms of Rule 57A of the Central Excise Rules, 1944 and there is any violation of condition (V)(A) of Notification No. 203/92-Cus. Demand of customs duty was confirmed on the appellant, who is the transferee of the advance licence. However, as regard the condition of non-availment of MODVAT credit provided under Condition No. V(A) of Notification No. 203/92-Cus., the obligation is on the exporter and not on the transferee of the licence. Therefore, the entire basis of the show cause notice and the consequent confirmation of demand is incorrect. - Commissioner has wrongly denied the exemption Notification No. 203/92-Cus to the appellant and confirmed the customs duty demand by denying the benefit of exemption Notification No. 203/92. - Decided in favour of assessee.
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