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TMI Blog2016 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ant exporter whether the credit was availed or otherwise is the matter of fact which can be known from the investigation at supporter manufacture's end. However, department has not even tried to verify whether supporting manufacturer has availed the credit or otherwise. He also submits that notification only prescribed the condition under clause V(A) that no modvat credit should be availed, however no documentary evidences is require to be submitted, only the condition is that on the export documents it has to be declared that modvat credit is not availed. In the present case that declaration is not under dispute. He further submits that import was made after export of the goods therefore it was open for the customs authority to question about the fulfillment of the condition of the notification which department failed to do therefore extended period of the demand cannot be invoked. On this ground demand is time bar. He further submits that duty was also wrongly quantified as the correct quantification comes to Rs. 93,435/- and not to Rs. 2,54,828/-. He further submits that appellant have received the modvat certificate from two supporting manufacturer however unable to obtained fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice issued to each of the appellants alleges that Modvat credit had been taken of the duty paid on the inputs used in the manufacture of exported goods, thus contravening the condition contained in clause v(a) to Notification 203/92. The notices invoked the extended period contained in the proviso to sub-section (1) of Section 27 of the Act on the ground that the exporter had made a wrong declaration on the shipping bill that Modvat credit has been availed of. The counsel for Gaurisons says that no show cause notice was received by it and it is only on passing of the order that it came to know of the existence of the proceedings. Counsel for the Consumers Plastics Pvt. Ltd. submits that the reply that it filed to the notice was not considered. Each of them requests remand of the matter to the Commissioner for decision on merits afresh, contending that their case is covered by the ratio of the Tribunal in Plastchem Industries v CCE, 2000 (120) E.L.T. 775. 3. In that decision, the Tribunal had concluded that while it was open to the department, when the import took place to ask the importer to satisfy that Modvat credit has not been availed of and it could deny exemption in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the relevant condition in Notification 203/92 has not been made out by the Revenue. We therefore set aside the impugned order in so far as it relates to the appellant, namely, by setting aside the penalty imposed upon them, and allow the appeal. . Diamond Polyprints 6. We find that in the show cause notice there is allegation that manufacturer/exporter i.e. original licence holder has availed Modvat credit and made wrong declaration in the export documents to the effect that no Modvat credit was availed and as such violated the condition V(a) of Notification No. 203/92-Cus. However, it is undisputed facts that show cause notice has no base or in fact no single document has been relied upon in the show cause notice that the manufacturer-exporter made a wrong declaration on the export documents that no Modvat credit was availed on the input used in the export goods, the entire proceedings are vitiated by the Revenue as it failed to prove that the declaration is incorrect. Allegation of charge is possible only by adducing tangible documentary evidences such as Modvat invoices, Modvat account in respect of input of manufacturer-exporter. No such exercise was carried out in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed on the appellant, who is the transferee of the advance licence. However, as regard the' condition of non-availment of MODVAT credit provided under Condition No. V(A) of Notification No. 203/92-Cus., the obligation is on the exporter and not on the transferee of the licence. Therefore, the entire basis of the show cause notice and the consequent confirmation of demand is incorrect. 5.2 On the identical issue, the Larger Bench of this Tribunal, in the case of Hico Enterprises v. Commissioner of Customs - 2005 (189) E.L.T. 135 held that the transferee of the licence cannot be held responsible for compliance of the Condition V(a) of the Notification No. 203/92-Cus. This Larger Bench decision has been upheld by the Hon'ble Supreme Court [2008 (228) E.L.T. 161 (S.C.)] in Civil Appeal No. 2418 of 2006. 6. In view of the above settled legal position and considering the facts and circumstances of the case, we are of the considered view that the learned Commissioner has wrongly denied the exemption Notification No. 203/92-Cus. to the appellant and confirmed the Customs Duty demand by denying the benefit of exemption Notification No. 203/92. 7. In view of our above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai, against CEGAT Order Nos. 1036-1037/2001-WZB/C-I, dated 24-3-2001 and reported in 2002 (148) E.L.T. 562 (Tri. - Mumbai) [Goel Airshrink (India) Ltd. v. Commissioner]. The Appellate Tribunal in its impugned order had held that exemption granted Notification No. 203/92-Cus. in 1994 cannot be withdrawn in 1999 on the ground that eligibility to exemption was not proved. Burden to show that the exemption granted was not available lies on Department. Futura Fashions Pvt Ltd. This is an appeal against yet another order of the Commissioner of Customs, Nhava Sheva demanding duty from the appellant and imposing penalty on him on his finding that Modvat credit was availed of goods exported by it, thus contravening the condition contained in Notification 203/92. We have in a number of earlier occasions set aside such orders on the ground that they did not indicate either the material on the basis on which it was alleged that it has been taken or did not indicate any material to justify invoking the extended period contained in the proviso under sub-section (1) of Section 28 of the Act. We had noted that the export had already been allowed by giving the benefit of the notification withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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