TMI Blog2016 (11) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption as per the licenses. It is a case of the Revenue that the appellant is ineligible to avail the benefit of notification No.203/92 as they could have availed the modvat credit on inputs in respect of the materials exported for procuring the advance licenses. While it is a case of the appellant that there is no evidence shown that the original licence holder who was a manufacturer exporter had availed modvat credit. On perusal of the advance licenses which are annexed when the appeal memorandum, we do find strong force in the submissions made by the learned Counsel that these licenses were issued to some other manufacturer exporter who had sold these licenses to the appellants. If it is so, then, in our view demand of custom dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was passed since the appellants had not received the said order or any show cause notice or intimation of hearing. By letter dated 25/03/2004 the Assistant Commissioner provided copies of show-cause notice dated 29/01/1999 and the said order dated 17/10/2000. The said show-cause notice (P.25 of the appeal) demanded from the appellants customs duty in respect of the said goods imported by the appellants in January-February 1994 against transferable value based Advance Licenses which the appellants had acquired as transferees. It was contended in the notice that the manufacturer of the goods exported in discharge of the export obligation under the said advance licenses had availed input stage credit under Rule 57A of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious benches in the following case laws: a) Sunbeam Garments Pvt. Ltd. 2012 (284) ELT 709 b) Diamond Polyprints 2016 (332) ELT 883 c) Silverwing Investment Trading Co. 2002 (149) ELT 601 d) Premier Ele. Corporation 2002 (150) ELT 1226 e) Plastchem Industries 2002 (120) ELT 775 5. It is his further submission that when the goods were imported, appellant produced the transferable licence to the authorities which was accepted and goods were allowed to be cleared with the benefit of exemption, subsequently if there is a second view, the burden is cast on the authorities to prove that the appellant importer was not entitled for exemption. It is his further submission that the adjudicating authority has proceeded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption as per the licenses. It is a case of the Revenue that the appellant is ineligible to avail the benefit of notification No.203/92 as they could have availed the modvat credit on inputs in respect of the materials exported for procuring the advance licenses. While it is a case of the appellant that there is no evidence shown that the original licence holder who was a manufacturer exporter had availed modvat credit. 8. In our considered view, learned Counsel was correct in bringing to out notice that the allegations in the show-cause notice are that the appellant had availed the modvat credit on the inputs for manufacturing of the goods which were exported against which the advance licenses were procured. Factually, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above factual position, we find that the impugned order is unsustainable. 11. As regards the case laws relied upon by the learned DR, we find that the factual position in those cases were different as it is clearly recorded in the order of the Tribunal that the assessee therein had in fact availed the modvat credit on the inputs. Hence, the reliance placed on these case laws by the learned DR will not carry their case any further. 12. In view of the foregoing, we set aside the impugned order and allow the appeal filed by the assessee with consequential relief. Since, we have disposed of the appeal on merits, we are not recording any findings on various other submissions made by both sides. ( Operative part of the order pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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