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CJ Shah & Co. Versus Commissioner of Customs (EP) , Mumbai

Claim of exemption on import goods against advance licence - Input stage credit - Rule 57A of the Central Excise Rules - entitlement to the exemption availed under notification No.203/92-Cus dated 19/05/1992 - forged licence - Held that: - the appellant is a transferee of the licences which were issued to the original manufacturer exporter. The said licenses are genuine and there is no allegation that these licenses were procured by forging the documents or the licenses were forged. The licenses .....

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rer 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 duty cannot be made against the appellant holding that they have availed modvat credit on the inputs. We find that there is no evidence in .....

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against Order-in-Original No.71/2005/ACC/CC/NRN dated 31/08/2005 passed by Commissioner of Customs (Export Promotion), Mumbai. 2. The relevant facts that arise for consideration are that, in January-February 1994, the appellants had imported various goods which were cleared with duty exemption under Notification No.203/92-Cus dated 19/05/1992 against transferable value based Advance License which were acquired by the appellants as transferees. On 20th March 2004, the appellants received a recove .....

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ommissioner 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 sai .....

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adjudicating authority to consider whether modvat credit was availed on the inputs and then pass a fresh order after following principles of natural justice. In the remand proceedings, the adjudicating authority has again confirmed the demand raised holding that the appellant did not produce any evidence of non-availment of modvat credit on the inputs. 4. Learned Counsel submits that show-cause notice does not cite any evidence in support of the allegation that the original license holder, i.e. .....

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the Revenue. It is his submission that identical views has been expressed by various 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 .....

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raws our attention to the licence annexed at page 28 to 31 and submits that it can be ascertained that the appellant is transferees and not the original licence holder. On limitation it is his submission that show-cause notice was not served either within normal period or within six months or extended period of five years as provided under Section 28 of the Customs Act, 1962. 6. Learned departmental representative on the other hand reiterates the findings of the lower authorities and submits tha .....

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e original manufacturer exporter. The said licenses are genuine and there is no allegation that these licenses were procured by forging the documents or the licenses were forged. The licenses were produced by the appellant before the authorities in 1994 while clearing the goods imported and claimed the 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 .....

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e licenses were procured. Factually, the appellant had purchased the advance licenses from the manufacturer exporter and hence, asking the appellant to evidence that original manufacturer exporter had not availed the modvat credit, is a far fetched proposition well neigh impossible act. The Apex Court in the case of Auto Ignition Ltd. (supra) had an occasion to consider similar issue wherein in para 9 their Lordships held as under: We agree with the view taken by the Tribunal that in the absence .....

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