TMI Blog2012 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Central Excise, for the Department. [Order]. This revision application has been filed by the applicant M/s. Dymach Pharma, Vapi against the order-in-appeal No. AKP/121/DMN/Vapi-I/2009-2010 dated 20-11-2009 passed by Commissioner (Appeals) Central Excise, Customs Service Tax, Daman arising out order-in-original No. Vapi-I/Offence/153/2008-09 dated 12-2-2009 passed by the jurisdictional Assistant Commissioner, Central Excise Customs, Division-I, Vapi. 2. Brief facts of the cases are that the applicant M/s. Dymach Pharma, Vapi was having Central Excise Registration for manufacturing of Bulk Drugs falling under Chapter Heading No. 29 of Central Excise Tariff Act, 1985. The assessee was also availing the facility of Cenvat Credit under Cenvat Credit Rules, 2004. It was noticed during the course of scrutiny of proof of export pertaining to ARE-1 No. 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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant filed this revision application under Section 35EE of the Central Excise Act, 1944 before Government on following main grounds : 3.1 In Paragraph 5 of the order. The Commissioner (Appeals) has specifically acknowledged that goods have been eventually exported by M/s. Sal Pharma, Hyderabad from Air Cargo Terminal, Hyderabad. Thus it is distinctly clear that the goods which were removed from the factory of Dymach Pharma are exported as such. Thus substantive compliance of the law stands established in an incontrovertible manner. The basic condition for collection/recovery of duty under the Central Excise law is that the goods should be removed for home consumption, which is not the case. 3.2 In paragraph 5 of the order says that goods were to move from the factory to the head office of Dymach Pharma under the CT-1 but then the law does 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. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it complete by itself and ignoring harmonious reading of the law. 3.5 An Annexure A is attached to the EA-1. This is a copy of the Bond executed with the jurisdictional Excise authority at Mumbai. The bond is executed as manufacturer exporter and entitles the manufacturer to clear goods for the exports by merchant exporter. Please note that there is a separate bond executed as Merchant Exporter, which is attached as per Annexure B. The paragraph 6 of the order of the Commissioner (Appeals) is simply a figment of imagination and nothing beyond that because there are several type of benefits available on exports and they flow to different entities such as manufacturer, exporter or third party as per the law. The law provides for such flexibility and the Commissioner (Appeal) cannot curb this. 3.6 Here, if the duty is paid then it is 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, Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own bond and export through the merchant exporter this circular valid as on date. Finally when the goods manufactured by Dymach Pharma, Vapi cleared from their manufacturing facility under their bond exported by M/s. Sal Pharma then how can the duty be levied when the goods have not entered the domestic market. 4. The personal hearings in this case matter were scheduled on 27-7-2011 and 25-8-2011. The applicant vide letters dated 26-7-2011 and 16-8-2011 while showing inability to attend hearings at Delhi reiterated facts and merits of the case further relied upon cited case laws. The Respondent department was represented by Sh. Mohan Kumar Meena, Deputy Commissioner Customs and Central Excise, Daman, who while reiterating facts has stated that Order-in-Appeal being legal and proper should be upheld. 5. Government has carefully 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r warehouse or approved premises or Maritime Commissioner or such other officer as may be authorized by the Board in this behalf and on the basis of such certificate he may procure excisable goods without payment of duty for export by indicating the quantity, value and duty involved therein. (b) The exporter who has furnished bond shall ensure that the debit in bond account does not exceed the credit available therein at any point of time; (c) The manufacturer-exporter may remove the goods without payment of duty after furnishing the letter of undertaking as specified under condition (i); (d) Such General bond or letter of undertaking shall not be discharged unless the goods are duly exported, 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. - Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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