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2015 (11) TMI 666 - CESTAT MUMBAI

2015 (11) TMI 666 - CESTAT MUMBAI - 2015 (329) E.L.T. 600 (Tri. - Mumbai) - Refund claim - Denial of CENVAT Credit - Capital goods - non-production of proof of exports - Held that:- Issue of show-cause notice well after the submission of proof of exports under various letters written by the appellant to the department is most unfortunate. The learned Counsel states that even the 10 ARE-1s selected for random check are not related to the ARE-1s which covered export through merchant exporters. The .....

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Even in the matter of penalty, the judgements in the case of Jay Jagdish Sugar (2004 (3) TMI 604 - CESTAT, MUMBAI) and Shagun Processors (2008 (12) TMI 111 - CESTAT AHMEDABAD) hold that the responsibility rests on the merchant exporter.

The revenue has not been able to explain how Rule 20 (3) is not applicable. Rule 20 (3) states that the responsibility for payment of duty on the goods that are removed from the factory of production to a warehouse or from one warehouse to other wareh .....

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act that the proof of export was available to the department before issue of show-cause notice means that the amount was forcibly recovered from them and can only be termed as deposit and can definitely not be termed as an amount deposited towards excise duty. Reliance is placed on CCE Vs. Ucal Fuel Systems Ltd. - [2011 (9) TMI 903 - Madras High Court]. Therefore, refund is not hit by time bar. - Matter remanded back - Appeal disposed of. - APPEAL No.E/1059 & 1058/09 - Final Order Nos. A/1326-13 .....

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.78,835/- & ₹ 25,06,568/- under Section 11AC of Central Excise Act, 1944 and equivalent amount of penalties under Section 11AC read with Rule 25 of Central Excise Rules and Rule 15 of the Cenvat Credit Rules, 2004. The second appeal No.E/1058/09 is against the order-in-appeal No.AGS (126)/17/09 dated 25/06/2009 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad, upholding the rejection of refund claim of ₹ 21,59,663/-. 2. The facts are that the appellant .....

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erchant exporters, involving excise duty of ₹ 25,06,568/-. The second issue is non-production of re-warehousing certificate in respect of goods cleared to the EOUs, within 90 days from the date of clearance from their factory, involving duty of ₹ 10,84,868/-. The third issue is wrong availment of Cenvat credit of ₹ 78,835/- on capital goods. 3. Heard both sides. 4. The learned Counsel submits that there is not even a whisper of export having not taken place or the goods not bei .....

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w-cause notice dated 14/05/2008 which was adjudicated vide Additional Commissioners order dated 15/10/2008 confirming the demand of ₹ 25,08,568/- which was already paid vide Cenvat debit entry No.282 dated 15/02/2007. This order was confirmed by the Commissioner (Appeals). The Commissioner (Appeals) observed that the test check of some ARE-1 s showed that proof of export was not submitted in respect of 10 ARE-1s involving duty of ₹ 1,00,134/-. The test check was done without informi .....

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No.E/1058/09. The learned Counsel submits that the responsibility of producing proof of exports lies on merchant exporter as held by the Tribunal in the case of Jay Jagdish Sugar Vs. CCE, Nasik 2004 (175) ELT 314 (Tri-Mumbai), CCE, Surat Vs. Shagun Processors Pvt. Ltd. - 2009 (236) ELT 52 (Tri-Ahmed) and by Joint Secretary (Revision) in Order No.1635/2012 dated 26/11/2012. 4.1 Regarding the issue of non-availability of re-warehousing certificates in respect of exports made to EOUs, the contenti .....

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Textile Mill Ltd., Vs. CCE, Mumbai - 2007 (214) ELT 386 (Tri-Mumbai) and Tribunal order in the case of CCE, Nagpur Vs. Simplex Mill Co. Ltd., - 2007 (215) ELT 107 (Tri-Mumbai). 4.2 On the last issue of Cenvat credit on capital goods, the learned Counsel states that no inquiry whatsoever was conducted regarding use of these goods. 5. The learned AR reiterates the findings of the Commissioner. He states that the warehousing provisions are governed by Rule 20. The Government has vide Notification N .....

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ed that once the goods are removed from the factory for export and if the goods are diverted the responsibility of payment lies on the warehouse in terms of Rule 20 (3). 6. We have carefully considered the submissions of both sides. 7. On the first issue of non-production of proof of exports, we find that the whole issue has been treated in a very careless and shoddy manner by the authorities. The Commissioner (Appeals) has simply done a random check of some ARE-1s and come to the conclusion tha .....

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er the submission of proof of exports under various letters written by the appellant to the department is most unfortunate. The learned Counsel states that even the 10 ARE-1s selected for random check are not related to the ARE-1s which covered export through merchant exporters. These ARE-1s actually relate to the export to the EOUs. Therefore, we find that the matter needs to be examined afresh by the adjudicating authority taking into account all documents submitted by the appellant. The adjud .....

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ceipt of re-warehousing certificates. The revenue has not been able to explain how Rule 20 (3) is not applicable. Rule 20 (3) states that the responsibility for payment of duty on the goods that are removed from the factory of production to a warehouse or from one warehouse to other warehouse shall be on the consignee. Even if Rule 20 (4) which casts the responsibility upon the consigner is considered it is for the Revenue to seek documents from the Superintendent in charge of the consignee as l .....

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n and considering various decisions of courts. 7.2 On the issue of capital goods, both the lower authorities have not cared to examine the nature of the goods and analyse whether Cenvat credit can be allowed. We note that these goods are HR Plates, Hand Rails, fabrication racks, platform, etc. which are found to be used in erection of machinery used in factories. The Cenvat credit is allowable in such cases as held by the Tribunal in the case of Andhra Pradesh Paper Mils Ltd. Vs. CCE, Visakhapat .....

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