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TMI Blog2012 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... 1187/07-08 dated 8-11-2007 involving duty exemption of Rs. 20,600/- by Assistant Commissioner (Bond), Central Excise, Mumbai-IV that the bond holder M/s. Dymach Pharma, Andheri (E), Mumbai has obtained CT-1 bearing No. 175/07/08/9062 dated 7-11-2007 for procuring Damazol USP 5kgs valuing at Rs. 1,25,000/- involving duty 20,600/- from M/s. Dymach Pharma, Vapi for export purpose. However the assessee has cleared the goods Damazol USP 5kgs valuing at Rs. 1,25,000/- to M/s. Sal Pharma, 17-171/2, Backaram Hyderabad without payment of duty i.e. party other than the valid CT-1 holder. The CT-1 No. 175/07-08 is issued to M/s. Dymach Pharma, Mumbai under bond No. 4/4 and not to M/s. Sal Pharma, Hyderabad. Thus, Dymach Pharma, Mumbai were found only eligible for procurement of Damazol USP 5kgs from M/s. Dymach Pharma, Vapi without payment of duty for exports. The goods should have been cleared to M/s. Dymach Pharma, Mumbai, instead of M/s. Sal Pharma, Hyderabad. 2.1 The original authority found that the goods cleared to M/s. Sal Pharma without payment of duty and without any valid documents i.e. Bond/CT-1 etc. by the assessee and thus contravened the provisions of Rule 4, Rule 8 and Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not state that restriction anywhere therefore that restriction cannot be interpolated and read into the law. Similarly, there is no truth in the statement that since the CT-1 and the bond belongs to the head office of Dymach Pharma then the export could be effected by the head office of Dymach Pharma and not by any third party. However, this is totally antithetical to the stated law. The Commissioner (Appeals) fails to comprehend that Dymach Pharma is a single legal entity and the head office cannot be treated as separate entities. Where export is effected by merchant-exporter, the bond has to be necessarily furnished. It is open for the manufacturer to furnish bond on behalf of merchant-exporter. Not only this, the Central Excise Manual further very explicitly states that once a manufacturer furnished bond for exports by merchant exporters, it would be his responsibility to account for the export goods. Thus it is distinctly provisioned in the law that the manufacturer can furnish bond and effect exports through Merchant exporter i.e. third Party. Dymach Pharma is the manufacturer of goods, registered with the DGFT authorities as manufacturer exporter as well as with the Export P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subject to refund through rebate because exports have taken place, therefore, the conclusion is that there is Revenue Neutrality and demand need not be pursued. Please refer Annexure 2. This is a copy of the proof of export submission to the jurisdictional authority located in Mumbai i.e. the Office of Maritime Commissioner of Central Excise, Mumbai but till date no action has been taken by them i.e. the proof of export is not rejected. Since the proof of export issuance is held up by the relevant authority, under no circumstances we can be held responsible for the same and coercive action taken against under Section. Case law in the case of Verifone India Pvt. Ltd. v. C.C., Bangalore - 2005 (192) E.L.T. 327 (Tri.-Bang.) wherein it is ruled that Customs authorities can adjudicate the issue only after DGFT arrives at a finding regarding the same C.B.E. & C. Circular No. 21/95 dated 10-3-1995. The ratio of the decision applies to the present case. In case of the fulfilment of the export obligation, the licence giver i.e. the DGFT authorities have to arrive at a finding in terms of law before the Customs department can take action and before that decision is arrived the customs depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 6. Government notes that factual details of the case matter are not in dispute and that the applicant is a manufacturer assessee and that assessee M/s. Dymach Pharma, Vapi has cleared a consignment for export under ARE-1 No. 1187/07-08 dated 8-11-2007 under Bond under CT-1 bearing No. 175/07-08/9062 dated 7-11-2007 obtained by the Bond holder i.e. M/s. Dymach Pharma, Andheri (East), Mumbai, but the said consignment was cleared to M/s. Sal Pharma, Hyderabad and shown as exported from there. The applicant while accepting statutory applicability of all the relevant Rule/Notification/Circular is basically impressing upon whatever act of omission and commission, whichever occurred in this case is only of a nature of procedural error which is liable to be condoned and such substantial benefit of exemption from duty should not be denied in this case of exports. Further that there is lapse on the part of department also and he (the applicant) should neither be held responsible nor penalized for the same and issued Show Cause Notice was wrong in law. In a situation as above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted, to the satisfaction of the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise or Maritime Commissioner or such other officer as may be authorized by the Board in this behalf within the time allowed for such export or are otherwise accounted for to the satisfaction of such officer, or until the full duty due upon any deficiency of goods, not accounted so, and interest, if any, has been paid. ............................... ............................... Explanation II. - For the purposes of this notification, "Maritime Commissioner" means the Commissioner of Central Excise under whose jurisdiction one or more of the port, airport, land customs station or post office of exportation, is located. ............................... ............................... Here it is a fact of record that the stated exporter herein is M/s. Dymach Pharma, B-12, Anand Sagar, Mumbai (E) who has furnished a Bond with the office of the Assistant Commissioner (Exports), Mumbai-IV (a maritime Commissioner Category) and obtained CT-1 which specifically stipulates that it was only this firm i.e. M/s. Dymach Pharma, Mumbai who has been permitted to obtain excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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