TMI Blog2013 (2) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002. The goods were brought to their factory for emission testing as the said facility is not available at Hosur Plant. Hon’ble Tribunal has held in the case of CCE, Ahd. v. Tapsheel Enterprises[2007 (5) TMI 97 - CESTAT, AHMEDABAD] that third party goods in addition to own goods exported after testing and repacking and duty paid at removal from Cenvat credit taken is available as rebate - The provision of Rule 16 are rightly availed by applicant and therefore goods exported within six months from date clearance from their factory. Boards Circular No. 294/97-CX., dated 30-11-1997 clearly sates that when certain goods having special characteristics and are clearly identifiable with a unique engine No. and chassis No. it is possible to correlate the goods exported and payment of duty thereupon. In this circular the condition of direct export from the factory or payment of duty is also relaxed where such correlation and duty paid nature is established - ARE-1 original/duplicate contains the endorsement of customs that goods mentioned in ARE-1 have been exported vide said Shipping Bill. As such the export of said goods stands established – Rebate of duty on exported goods is admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a time lag of almost one year from Vellivayalchavadi unit under ARE 1 No. 20003, dated 28-3-2008 (invoice No. 100005, dated 28-3-2008) showing the consignee address as : Lanka Ashok Leyland Ltd., Panagoda, Homagama, Srilanka . Said ARE-1 mentions delivery at: Bombay Service Plot Nos. 64-67, Bhingawadi, Sheeding Village, Taluk Pavel, District: raigad 410206 . (iii) The description in Invoice No. 014152 dated 29-3-2007 from Hosur Unit II invoice, excise invoice No. 10005 dated 29-3-2008 from Vellivayalchavadi accompanying ARE-1 No. 20003 dated 28-3-2008 and Shipping Bill No. 5481224, dated 21-7-2008 bear the description as follows : Document Tariff Heading Description Duty paid details Invoice No. 014152 dated 29-3-2007 of Ashok Leyland Ltd.; Hosur Unit-II 87060042 ASHOK LEYLAND 164 WB (4166MM) comet 4x4 trucks powered by W06E (Euro I) Eninge Synchromesh Gearbox, Power Steering RHD 2X12 Volts batteries, 7 Nos. 10.00X20-16PR Nylon Tyres, Tool Kit and Jack with factory built driver cabin. CENVAT- Rs. 1,48,717/- M.V. Cess - Rs. 1,084/- Edu Cess - Rs. 2,997/- SHE Cess - Rs. 1, 498/- Invoice No. 100005(ARE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the reversal of the credit availed on clearance for export from Vellivayalchavadi has neutralized the wrong availment of credit under Rule 16 of Central Excise Rules 2002. 2.5 The present Rebate claim has been filed in terms of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. As per para 2(a) of said Notification, the excisable goods shall be exported after payment of duty, directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order, and para (3) of said Notification requires sealing of the excisable goods either by Central Excise Officer or self-sealing by Taxpayer themselves at the time of clearance from the factory or warehouse. In other words, it appeared that condition 2(a) and procedure laid down under para 3 of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of the Central Excise Rules, 2002 were meant to ensure that the excisable goods cleared from the factory were exported in the same condition in which it was cleared from the factory. 2.6 In the present case as it appeared that the excisable goods cleared from the factory at Vellivayalchavadi and the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for carrying out test not amounting to manufacture to another premises for home consumption on payment of duty or without payment of duty for export as the case may be. 4.3 Though the vehicle were manufactured initially at their Hosur Plant, it will not reach the marketable stage unless the vehicles are tested with reference to all the parameters that are required to make them export worthy. The Testing facility is not available at the Hosur factory. It is available only at their plant at Vellivayalchavadi, near Chennai. Hence the vehicles become excisable goods and marketable only then the testing activity had taken place at their said unit. Testing is the last process or leg of manufacture which had been done at that Unit. 4.4 Rule (16) of the Central Excise Rules provides for inwarding duty paid goods into the factory of any manufacturer for refining, repairing or any reason for that matter. It facilitates credits availment and payment of an amount equal to the credit (where the activity does not amount to manufacture) or payment of duty at the transaction value. In this case, goods after testing are exported and valuation had been done in terms the rules and duty had been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty already discharged. What is necessary here is fact of discharge of duty and export of the same very goods. Hon ble High Court of Bombay in the case of CCE, Raigarh v. M/s. Micro Ink Ltd. reported as 2011 (270) E.L.T. 360 (Bom.) has held as under in para 17 of its order, dated 23-3-2011 The contention of the revenue that the payment of duty by reversing the credit does not amount payment of duty for allowing rebate is also without any merit because, firstly there is nothing on record to suggest that the amount paid on clearance of inputs/capital goods for export as duty under Rule 3(4) 3(5) of 2002 Rules cannot be considered as payment of duty for granting rebate under the Cenvat Credit Rules. If duty is paid by reversing the credit it does loose the character of duty and therefore if rebate is otherwise allowable, the same cannot be denied on the ground that the duty is paid by reversing the credit Secondly, the Central Government by its circular No. 283/96, dated 31st December, 1996 has held that amount paid under Rule 57F(1)(ii) of Central Excise Rules 1944 (which is analogous to the Cenvat Credit Rules 2002/Cenvat Credit Rules 2004) on export of inputs/capital goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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