TMI Blog2013 (11) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ime, be asked only to produce the procurement certificate countersigned by the Assistant Commissioner having jurisdiction over the person procuring the goods. Quite often it may not be possible to establish one to one correlation between the raw material supplied and the goods exported and consequently between the raw material supplied and the Shipping Bills and ARE-2s - The raw materials get used in manufacture of different products and different products are exported under different Shipping Bills - if the Assistant Commissioner having jurisdiction was not enforcing his responsibility as envisaged under Notification No. 43/2001, the assessees cannot be penalized - both the appellant and some of the persons procuring the goods were in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. Out of this, an amount of Rs.36,18,038/- was sanctioned by the adjudicating authority in the first round. The balance amount was rejected on the ground that it relates to goods supplied by the appellant to other manufacturers who were exporters. The adjudicating authority was of the view that refund under Rule 5 of the CENVAT Credit Rules, 2004 could not be granted for goods which were not directly exported by the appellant. The appellant filed appeal with the Commissioner (Appeals). The Commissioner (Appeals) relied on the decision of the Tribunal in the case of CCE, Kolkata Vs. UIC Wires Ltd. -2003 (158) ELT 723 and held that even in a situation where Cenvat credit accumulated due to the fact that the final product of the appellant we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, I set aside the order of the lower authority. Before sanctioning the refund, the lower authority should ensure that no drawback is availed of by any merchant exporter on the said processed fabrics cleared in terms of Rule 19(2) of CER 2002 on the ultimate export. 3. Consequent to the above order the Assistant Commissioner directed the appellant to produce certificate of non-availment of drawback from the persons to whom the appellants had supplied the goods under Rule 19(2). The appellant replied that that onus to verify that no drawback was claimed on the goods exported was on the Department as per the order of the Commissioner (Appeals) and Department cannot ask the appellant to produce any such certificate. The Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving jurisdiction over the factory where the goods were to be used for manufacturing of final product to be exported. The certificate showed that the manufacturer who was procuring the goods under the provisions of Rule 19(2) and Notification No. 43/2001-CE (NT) had executed necessary bond for complying with the provisions of this notification and the rule. Since under Notification No. 43/2001-CE(N.T.), it is clearly prescribed that when raw materials were obtained without payment of duty as per provisions of the said Notification, the manufactured goods had to be exported under Form ARE-2 which is a form declaring that no drawback was being claimed on the goods exported. When the Assistant Commissioner having jurisdiction over the person p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 5, the onus to prove that the above requirements were complied with, lies squarely with the person claiming refund and not with the Department. In this case, the appellant failed to discharge the onus and did not produce any document to show that the goods were manufactured and exported and therefore he says that there is risk to revenue by granting this refund without verifying that the person who obtained the goods undertook further manufacture using such material and exported the final products and if at all export took place, no draw back was claimed on the goods so exported. He submits that the procurement certificate issued under Notification No. 43/2001 cannot be considered as a proof of export or as a proof of the fact that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re used in manufacture of final products and such final products were exported and no drawback was claimed on such goods. Quite often it may not be possible to establish one to one correlation between the raw material supplied and the goods exported and consequently between the raw material supplied and the Shipping Bills and ARE-2s. The raw materials get used in manufacture of different products and different products are exported under different Shipping Bills and therefore if the Assistant Commissioner having jurisdiction was not enforcing his responsibility as envisaged under Notification No. 43/2001, the assessees like the appellant cannot be penalized. It is also relevant that in this particular case, both the appellant and some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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