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2016 (12) TMI 84 - CESTAT MUMBAI

2016 (12) TMI 84 - CESTAT MUMBAI - TMI - Demand - Benefit of Notification 203/92 - DEEC licence - availing of input stage credit under Rule 56A or 57A of the erstwhile Central Excise Rules, 1944 - Held that: - The benefit of N/N. 203/92 is eligible to a licence holder, subject to conditions therein, and one of the conditions is that the export obligation is discharged and that input stage credit of the inputs consumed is not availed by the exporter. All the licences which were produced by the ap .....

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ers herein cannot be called upon to produce evidence in respect of an act to be done by exporter and original licence holder. - Appeal allowed - decided in favor of appellant. - Appeal Nos. C/860, 870, 885/06-Mum - Dated:- 3-11-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) Shri Anil Balani, Advocate, and Shri G.B. Yadav, Advocate, for appellants Shri M.K. Mall, Assistant Commissioner (AR), for respondent ORDER Per M. V. Ravindran These three appeals are chall .....

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ce evidence to show that they had not availed input stage credit under Rule 56A or 57A of the erstwhile Central Excise Rules, 1944 in terms of para (v) of the notification. In the absence of any such evidence, the adjudicating authority confirmed the demands raised and the appeals before the Commissioner (Appeals) also met with the same fate. 3. Learned counsel for the appellants would draw our attention to the findings recorded by the lower authorities and submit that it is not in dispute that .....

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f fulfilled by original licence holders and endorsement of the transferability by the DGFT authorities, the same cannot be held against the transferee to evidence any act of licence holder. They would also rely upon the final order of this Bench in the case of Globe Agencies vs. CC(I), Mumbai A/1256/14/CSTB/C-I dated 17.7.2014, to submit that the decision of the Tribunal in the case of Hico Enterprises was upheld by the Hon ble Supreme Court as reported at 2008 (228) ELT 161 (SC), wherein the ap .....

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s vs. National Aluminium Co. Ltd. 1996 (87) ELT 349 (Ori.), has held that modvat credit having been availed on the inputs is violation of the condition of Notification 203/92 and reversal of credit will not restore the breach of condition of exemption notification; and submit that the same has been upheld by the apex court as reported at 2002 (141) ELT A282 (SC). It is his further submission that the Hon ble High Court of Bombay in the case of Rico Gems Corporation vs. Chief Controller of Import .....

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such exemption notification, and relies upon the final order No. A/453/WZB/2004/C-II dated 20.5.2004 in the case of C.J. Shah & Co. vs. CC(E), Mumbai, wherein this Bench had remanded the matter back to the lower authorities for ascertaining the fact whether modvat credit on inputs has been availed by the original licence holder or otherwise. 5. We have considered the submissions made by both sides and perused the records. In these cases, the undisputed facts are that the appellants had purch .....

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er. All the licences which were produced by the appellants before the lower authorities, the exporter had discharged the export obligation and the licences were endorsed as transferable by the concerned authorities. The authorities in these appeals have issued a cyclostyled show cause notice to the appellants directing them to produce evidence, that exporter having not availed the cenvat credit on the inputs under the provisions of Rule 56A and/or 57A of the erstwhile Central Excise Rules, 1944. .....

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l are as follows : 4. Appellant acquired and/or purchased transferable Value Based Advance Licenses (in short VABAL ) including a License dated 19-1-1993 issued in the name of M/s. Amar Taran Exports, New Delhi. Same was purchased on 20-4-1994. Appellant on the basis of that imported consignment vide Bill of Entry No. 881 dated 30-3-1994. Same was allowed duty free allowance. By show cause notice dated 4-3-1999 appellant was called upon to show cause why an amount of ₹ 16,74,702/- could no .....

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111 of the Act. As the goods were not available penalties of ₹ 3 lakhs and ₹ 1 lakh were levied under Section 112(a) of the Act. 5. In view of divergence of views, the matter was referred to a Larger Bench of the Tribunal. The Tribunal inter alia held as follows : Hence the satisfaction arrived at in the above manner is final and binding on the customs department. The customs department cannot compel the appellants importer, who are the transferee, to once again prove that the expor .....

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respondent pointed out that no role was ascribed to it in the show cause notice. 7. It is seen that in view of the fact that in the show cause notice issued on 4-3-1999., there was no reference to the alleged infraction of M/s. Amar Taran Exports, the transferor of the license in question, the judgment of the CESTAT does not suffer from any infirmity to warrant interference. The appeal is dismissed. 6.1 The above said ratio has been followed by this Bench in the case of Globe Agencies (supra), .....

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