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Crompton Greaves Ltd. Versus Commissioner of Central Excise, Aurangabad

2015 (11) TMI 666 - CESTAT 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. These ARE-1s actually relate to the export to the EOUs. Therefore, we find that .....

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gar (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 warehouse shall be on the consignee. Even if Rule 20 (4) which casts the responsi .....

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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/1326-1327/2015-WZB/EB - Dated:- 8-5-2015 - Mr. P.S. Pruthi, Member (Technical) And .....

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, 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 manufactures electric motors and generators and exports a substantial porti .....

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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 being dispatched to the EOUs and the matter is merely procedural in nature. The .....

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sioners 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 informing the appellant. In any case, the 10 ARE-1 forms are actually relevant to t .....

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ing 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 contention is that it is the responsibility of the EOU and their jurisdictional Supe .....

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bunal 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 No.22/2003-CE dated 31/03/2003 obliges the consigner to follow the procedure .....

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ods 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 that the proof of exports have not been submitted in respect of ARE-1s involvin .....

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ppellant 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 adjudicating authority while deciding the case afresh must also visit various jud .....

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in 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 laid down in Board Circular No.851/9/2007-CX dated 30/05/2007. In the absence .....

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oods, 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, Visakhapatnam - 2009 (240) ELT 555 (Tri-Bang), which in turn relied on various judgeme .....

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