TMI Blog2015 (10) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no material available on malafide or mis-statement of fraud, etc on the part of the Appellant. Hence, in our considered view, the claim of the Appellant cannot be barred under Rule 57E - Matter remanded back - Decided in favour of assessee. - Appeal No.E/1800/2009-DB - Order No. A/10246 / 2015 - Dated:- 18-3-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant: Shri M.A. Patel, Consultant, Shri Anand Nainawati, Advocate For The Respondent: Dr. Jeetesh Nagori, Authorised Representative Per: P.K. Das 1. The relevant facts of the case, in brief, are that one M/s Core Healthcare Limited (i.e. the Company) imported duty free material by availing exemption benefit under Advance Licence. They failed to fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority rejected the claim on the ground that the Appellant had not paid the CVD at all and it is also stated that as per the Rule 57E of erstwhile Central Excise Rules, 1944, the Appellants are not eligible to avail MODVAT Credit. He submits that both the authorities below had not looked into the statement of payment of CVD enclosed with their letter dt.03.01.2008. He further submits that there is no fraud or mis-statement etc as held by the Settlement Commission order and therefore, Rule 57E of erstwhile Rules cannot be invoked. He drew the attention of the Bench to the relevant statement filed by them before the Adjudicating authority. 3. On the other hand, the learned Authorised Representative drew the attention of the Bench to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled for MODVAT Credit. In this context, we reproduce the findings of the Settlement Commission as under:- 14. There is no dispute that the exports have not taken place. The issue is only non-availability of the BRC because of which the claims are being denied. BRC is issued by the Bank through whom the export documents have been negotiated to prove that the export proceeds in relation to the particular exports have been realized through the Banking Channels, but absence of BRC cannot necessarily lead to conclusion that export proceeds have not been realized. The Revenue or DGFT have not produced any XOS (Export Outstanding) Statement issued by RBI or authorized dealer (Bank in this case) wherein it has been specifically mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the Bench to Para 11.4 of the order of the Settlement Commission. Revenue submitted before the Settlement Commission that according to JDGFT the total liabilities on account of advance licence pertaining to ₹ 1698.52 lakhs (without interest). The Department s claim is 1948.95 lakhs. It is also contended that JDGFT in their calculation has taken into account, only the Basic Customs Duty and they have considered only the amount to the extent of duty foregone on account of Basic Duty. The main contention of the learned Authorised Representative is that the Appellant had not paid the CVD and therefore, there is no question of acceptance of the claim. It is contended by the Appellant that they paid the amount of ₹ 822.89 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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