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2017 (7) TMI 448 - CESTAT MUMBAI

2017 (7) TMI 448 - CESTAT MUMBAI - TMI - SSI exemption - Goods cleared to merchant exporter and domestic consumption - Circular No. 648/39/2000-CX dated 25.7.2000 - Held that: - In the case of Vadapalani Press [2007 (3) TMI 151 - CESTAT, CHENNAI] wherein it was held that In Circular No. 212/96-CX., dated 20-5-1996, the Board simplified the export procedure for SSI units. Where the export of goods cleared from SSI unit was effected through a merchant-exporter, the certificate in "Form-H" issued b .....

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not only the goods exported as such, even the goods which was used for packaging of export goods were also treated as removal for export through merchant exporter and the same was held not to be includible in the domestic clearance. With the views taken in the above judgments, the interpretation of the adjudicating authority that in the appellants case the goods were not directly exported from the appellants unit is incorrect and the same cannot be accepted - Appeal allowed - decided in favor of .....

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nts are availing value based SSI exemption. They are supplying the goods to merchant exporter in addition to the clearances made to their domestic buyers. They have not included the clearance value in respect of supply made to merchant exporter treating the same as export clearances. Accordingly, the remaining clearances, which were made to their domestic buyer, they claimed SSI exemption as the aggregate value of such clearances was within the SSI exemption limit of ₹ 100 lakhs. The appel .....

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directly from the manufacturer. In the present case, the goods were sold to merchant exporter and have not directly exported. As regards other proof of export provided by the merchant exporter, the adjudicating authority contended that the proforma invoice issued by the merchant exporter is of pre-dated than the date of clearance of goods by the appellant, therefore, whatsoever export documents submitted are not relevant to the clearances made by the appellant. Accordingly, the said clearance w .....

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the present case, there is no dispute that in respect of all the clearances made to merchant exporters. The merchant exporters have provided Form 14B and/or Form H. Therefore, all such documents submitted to the Department is sufficient as proof of export. As regards the contention of the adjudicating authority that the goods should have been exported directly is mis-leading for the reason that the goods were sold to the merchant exporter and in turn merchant exporters has exported the goods an .....

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rt invoices, Bill of Lading etc. also prove that the goods supplied by the appellant have been exported through merchant exporter. The only reason for rejecting these documents by the adjudicating authority that the proforma invoice issued by merchant exporter are pre-dated i.e. before the clearance of the goods from the appellants premises. In this regard, he submits that it is general practice that for the purpose of processing the export in the Custom House, the exporter has to submit documen .....

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oices issued by the appellant. Therefore, correlation is clearly established between the supplies of appellant and export of the same goods by the merchant exporter. He further submits that the merchant exporter namely, M/s Bhalaria Steel Corporation has also given certificate that the goods supplied by the appellant to them during the period April, 2002 to February, 2003 were physically exported by them and in respect of the same Sales Tax exemption Form 14B along with copies of Bill of Lading .....

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ing Industries - 2009 (247) ELT 574 (Tri) (f) Universal Packaging - 2011 (264) ELT 147 (Tri) (g) Vadapalani Press - 2007 (217) ELT 248 (Tri) 3. Shri V.K. Agarwal, learned Addl. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He emphatically submits that as regards Form 14B/Form H, the Board has clarified that these documents can be accepted as proof of export only in case when the goods are directly exported from the manufacturer. In the presen .....

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e present case, pre-dated export invoices claimed to be as invoices in respect of the goods cleared by the appellant is not correct for the reason that the clearance of goods after the date of invoice is not related to the proof of export claimed by the appellant. Therefore, on both the counts, the appellant failed to prove export of goods and demand is rightly confirmed by the adjudicating authority. 4. We have carefully considered the submissions made by both sides. We find that the appellant .....

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ved by Board with a request to accept Sales Tax documents as proof of export for the supplies made to other domestic manufacturers who use the said goods in manufacture/packing of goods for export. Further, it has also been requested that the value of such clearances may be excluded from the total value of domestic clearances for the purpose of availing SSI exemption. 2. The matter has been examined by the Board. The Central Excise Manual provides that in the case of export by exempted units thr .....

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the reading of the above Circular, it is seen that the above procedure is primarily applicable in respect of small scale exempted units to export their goods either directly or through merchant exporter and documents prescribed by Sales Tax Department is Form H or ST-XXII Form or any other equivalent Sales Tax Form is acceptable as proof of export. The adjudicating authority interpreted the Circular in a manner that the goods should be supplied directly from the unit itself. As per the facts of .....

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rter and, thereafter, the merchant exporter export the goods and for that reason the Sales Tax Department issue Form H and Form 14B in respect of the goods supplied by the manufacturer to the merchant exporter. The Board has very consciously prescribed the aforesaid Sales Tax Form as proof of export for the reason that the said Forms are issued by the Sales Tax Department only in respect of those goods, which are exported. In respect of the goods supplied by the appellant, the merchant exporters .....

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very narrow and defeats the entire objective of the simplified export procedure prescribed by the Board. It is very obvious that in case of merchant exporter, the manufacturer supplier does not have locus-standi to export the goods directly from his factory. It always happens that first goods purchased by the merchant exporter and thereafter merchant exporters do all the procedures such as preparation and filing of documents for export to the Customs authority. Therefore, the assumption of the .....

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exemption. We have also perused the certificates issued by the merchant exporter, which fortify the claim of the appellant that the goods cleared by them have been exported and it cannot be brushed aside particularly when the appellants have submitted Form-H/Form-14B. Since Sales Tax forms have been considered by Board as proof of export, no further documents are required for the purpose of proof of export. 5. The very same issue has been considered in the various judgments as cited by the learn .....

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has cleared plastic hangers to the following units under Form H except Serial No. 1 1. M/s. Network Clothing Company (P) Ltd., Tirupur 2. M/s. Amstrong Knitting Mills, Tirupur 3. M/s. C.S. Garments, Tirupur 4. M/s. Stanfab Apparels, Chennai 5. M/s. R.R. Leather Products Pvt. Ltd., Chennai etc. 6. M/s. BNT Innovations, Tirupur 7. M/s. Gomathi International, Tirupur 8. M/s. Fulchand & Sons, Mumbai. These hangers have been exported along with garments by the above mentioned units. The corrobora .....

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hich was incidentally issued for clarifying the simplified export procedure available to exempted SSI unit. Though the assessee have not cleared the hangers directly from the factory premises, the Form H furnished is taken as an evidence to conclude that the hangers have been exported from the units mentioned above. On the basis of these documents, I am of the opinion that the assessee is entitled for deduction of the value of hangers cleared to these units from the total value of clearances in .....

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as proof of export by the exempted SSI units. The Board has clarified that the documents prescribed by the Sales Tax Department viz. H-Form or ST-XXII Form or any other equivalent Sales Tax Form will be accepted as proof of export. In the present case, Revenue has not disputed that the appellant placed sufficient material in the nature of H-Form or ST-XXII Form, Sales Tax Assessment Order as proof of export. There is no dispute that the Hangers were exported with garments by the merchant export .....

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isputed at any point of time. 8. In view of the above discussion, in Appeal No. E/1091/2005, we set aside the impugned orders and the appeal is allowed. In Appeal No. C/160/2005, the impugned order passed by the Commissioner (Appeals) is set aside and the adjudication order is restored. Both the appeals are allowed. 5.1 In the case of Hare Krishna Boxes Pvt. Ltd. (supra), this Tribunal considered an identical matter as under: - 4. We have given careful consideration to the submissions. Essential .....

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the relevant SSI notifications. In determining the aggregate value of clearances, they did not take into account corrugated boxes which were cleared to merchant-exporters for being used as packing material for vegetables and fruits which were exported out of the country. In this context, they produced Sales Tax Forms (G-I Forms upto 1-4-2005 and H-Forms from 1-4-2005) as proof of export of the corrugated boxes cleared to merchant-exporters. These facts are not in dispute. On these facts, the qu .....

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nual of Supplementary Instructionswas also considered alongwith certain circulars of the CBEC and it was held that the assessee in that case was entitled to reckon clearances of the subject goods (packing materials) to merchant-exporters as clearances for export and hence to exclude the same from computation of aggregate value of clearances of specified goods for home consumption under the relevant SSI exemption notifications. The decision rendered in Vadapalani Presss case was not challenged by .....

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as no case that the facts of the present case are materially different from those of Amar Packaging (supra) or Universal Packaging (supra). In this scenario, is our considered view that the Revenue is precluded from taking a different stand. The show-cause notice in question and also the adjudicating authority in the present case heavily relied on para 4.1.2, Chapter 7 of Central Excise Manual of Supplementary Instructions for alleging that the benefit of using sales tax forms under the Central .....

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aterial claiming SSI benefit in respect of clearances thereof for home consumption was entitled to use H-Form as a proof of export in respect of the materials cleared to merchant-exporters for being used for packing other goods for export, in the context of claiming exclusion of such clearance from computation of aggregate value of clearances of specified goods for home consumption under the relevant SSI notification. It is pertinent to note that the interpretation rendered by the Tribunal in re .....

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by the Board and hence not acceptable. We, therefore, are inclined to follow the view taken in Vadapalani Press (supra), and to allow these appeals. For the sake of brevity, we reproduce hereunder paras 5 and 6 of the judgment in Vadapalani Press : 5. After giving careful consideration to the submissions, we have found substance in the claim of the appellants that CBEC themselves had accepted Form-Hcertificates as proof of export vide Circulars No. 212/46/96-CX dt. 20-5-1996 and No. 648/39/2002- .....

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numbered H-Forms/ST-XXII form or equivalent Sales Tax form. After the goods have been exported by the merchant-exporters, the latter issues these forms to the manufacturers of the goods. The merchant-exporters in turn have to account all these serially numbered forms to the Sales Tax Department by furnishing a proof that the goods have been exported out. These proofs are in the form of presentation of the Shipping Bill duly completed by the customs, bill of landing, foreign exchange remittance .....

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y is available only in respect of the exempted units which undertake exports themselves or through merchant exporters directly from the unit itself. The facility is not available for the supplies made to any other domestic manufacturer who may or may not export its finished products. The clarification in the italicized sentences of para 4.1.2 were taken from the Boards circular dated 25-7-2002 ibid and ld. SDR has laid emphasis on the same and has argued that a Form-H certificate would not be ac .....

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ly with the relevant provisions of the Central Sales Tax (Registration and Turnover) Rules, 1957. Rule 10(a) of the CST (R&T) Rules, 1957 reads as under : A dealer may, in support of his claim that he is not liable to pay tax under this Act in respect of any sale of goods on the ground that the sale of such goods is a sale in the course of export of these goods out of the Territory of India within the meaning of sub-section (3) of Section 5, furnish to the prescribed authority a certificate .....

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d the fact that the sale of printed cartonsby the appellants to the said customers was a sale in the course of export of the goods out of India. The above rule contemplated export of the goods by the purchaser. By no stretch of imagination can it be said that the above rule contemplated retention of possession of the goods by the dealer (appellants in the present case) for its direct exportation from their own premises by the buyer (M/s. A.V. Thomas Co. or other similar customer in this ease). I .....

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of the Schedule below supplied in pursuance of my/our Purchase Order No. (ANNEXURE ENCLOSED) Purchased from you as per bill/cash memo/Challan No. (ANNEXURE ENCLOSED) dated (ANNEXURE ENCLOSED) for ₹ 88,64,004.15 have been utilized by me/us in the packing of the goods exported by me/us outside the territory of India, as per the details given in item (3) to (6) of the said schedule. The Schedule to the above certificate described the goods as boxes/packing materials and also provided export .....

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Such a document was liable to be accepted as proof of export by the appellantscustomer, of the cartons supplied by the appellants. It would not cease to be proof of export by mere reason of the fact that the exportation was done by the customer from his own premises and not directly from the appellantsfactory. Therefore, we are of the view that the interpretation given by learned SDR to the Boards Circular No. 648/39/2002 would not be consistent with the provisions of law governing issuance of F .....

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r buyer for packing shoes, which were exported. The Tribunal held that such clearances of corrugated boxes by the SSI unit were not to be included in the aggregate value of clearances by the unit for the purpose of claiming the benefit of SSI exemption. The Revenue has no case that the Tribunals decision in Radhey Paper Udyog dated 27-1-2005 was not accepted. Earlier decision to the same effect, of the learned Single Member in the case of International Corrugators (supra) was also, apparently, a .....

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take Central Excise registration and follow the regular A.R. 4/A.R. 5 procedure. Where proof of export was furnished within 6 months, the clearances made for export were not to be added to clearances for home consumption. Circular No. 648/39/2002-CX. affirmed the position and further clarified that the above facility was available only in respect of exempted units which undertook exports themselves or through merchant-exporters. Ld. SDR argued that, for the above benefit, the SSI unit must be an .....

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s, it is an exempted unit. In this sense, the appellants remained an exempted unit, thereby satisfying the first condition proposed by SDR. Circular No. 648/39/2002-CX. specifically refers to goods manufactured and cleared by SSI unit for packing of other goods for export. This circular deals with Form-H procedure as applicable to SSI unit selling goods to a merchant-exporter. This would mean that it is open to the merchant-exporter to use packing materials supplied by the SSI unit for packing h .....

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k also, the appellants must be held to have established their case for acceptance of Form-H certificates as proof of export in respect of the printed cartonssupplied by them to M/s. A.V. Thomas Co. and other similar customers during the period of dispute. It is ordered accordingly. 5. Having found striking parallel between this case and the case of Vadapalani Press and other similar cases cited by the learned counsel, we follow the ratio of the above decision and hold that the assessee in the pr .....

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arned Jt. CDR on the Apex Courts judgment in Hari Chand Shri Gopals case. In that case, the question considered by the Court was whether the respondent was entitled to exemption under Notification No. 121/94-CE in respect of the goods cleared by them for home consumption. The department alleged that the benefit would not be available to the party inasmuch as they had not followed Chapter X procedure as required under the above notification. Before the Apex Court, the party pleaded substantial co .....

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in the case of Vadapalani Press and other similar cases does not reflect the correct law as it was based on the Apex Courts decision in the case of Thermax Pvt. Ltd. (supra), which has been held to be inapplicable in the case of Hari Chand Shri Gopal. In the case of Hari Chand Shri Gopal, the Apex Court noted the facts of Thermax Pvt. Ltd. and found the same to be distinguishable. Their Lordships were considering the question whether the goods cleared by the assessee were actually used for the .....

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of clearances were not ultimately exported. The only case of the Revenue appears to be that the sales tax forms produced by the assessee did not adequately prove the factum of export. In other words, there is no proper correlation between the exports made by the merchant-exporters and the clearances made by the assessee. According to the learned Jt. CDR, had the goods been directly exported from the assessees factory, no such correlation would have been called for. These arguments are specious. .....

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ate case for giving effect to these instructions. Hence the view taken by us in the foregoing paragraphs. 5.2 In the case of Benara Bearings Pvt. Ltd. (supra), the Tribunal has held as under: - 4.1 I have carefully considered the pleas advanced from both sides. On the basis of the evidence produced to which detailed mention has been given above, I am satisfied that the goods have been exported as is apparent from HForm, Shipping Bill, Bill of Lading, Invoice number etc., there being tallying of .....

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the case of Merry (supra), this Tribunal has observed as under: - 4. We have considered the submission. We find that though the Commissioner has referred to some discrepancies in the export documents in Para 26 of his order, he has in Para 27 not questioned the export of the goods but has only held that since prescribed procedure was not followed for export, etc goods could not have been cleared without payment of duty. The discrepancies pointed out by him relates to some additional items menti .....

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ng of the words export through merchant exporterscannot result in demand of duty as there is no evidence to show that the goods have been cleared for domestic consumption and have not exported at all. In view of the same, we set aside the order of Commissioner and allow the appeal. 5.4 In the case of Amar Packaging Industries (supra), this Tribunal has taken the following view: - 3. We have considered the submissions made by both the sides. There is no dispute that carton boxes supplied by the a .....

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nal in Vadapalani Press case in coming to the conclusion in favour of the appellants in that case and accordingly we allow the appeal filed by the appellants with consequential relief. 5.5 In the case of Universal Packaging (supra), a Division Bench of this Tribunal observed as under: - 5. After considering the submissions, we are convinced that the appellants have made out a good case against the Commissioners decision. The case of the Revenue is mainly that, as the cartons which were cleared f .....

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to this objection of the Revenue. Another ground raised by the Revenue for including the above clearances in the aggregate value of clearance for home consumption is that the documents filed by the assessee did not conclusively prove exportation of the goods. We find that the assessee filed Bills of Lading, Sales Tax forms like FORM-H, FORM-G1 etc. to prove that the cartons cleared by the assessee were actually exported. We find that in a similar factual situation, the Tribunal held in Vadapalan .....

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ation to the submissions, we have found substance in the claim of the appellants that CBEC themselves had accepted Form-Hcertificates as proof of export vide Circulars No. 212/46/96-CX., dt. 20-5-1996 [reported in 1996 (14) RLT M84] and No. 648/39/2002-CX., dated 25-7-2002 [reported in 2002 (51) RLT M48] and para 4.1.2, Chapter 7 of the Central Excise Manual of Supplementary Instructions 2003-04. Para 4.1.2 ibid reads as under :- In the case of export through merchant-exporter the document presc .....

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turn have to account all these serially numbered forms to the Sales Tax Department by furnishing a proof that the goods have been exported out. These proofs are in the form of presentation of the Shipping Bill duly completed by the customs, bill of lading, foreign exchange remittance certificates etc. The liability of the manufacturers to the Central Sales Tax gets discharged only when they submit these forms to the Sales Tax Department. It is, therefore, seen that indirectly exports get account .....

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omestic manufacturer who may or may not export its finished products. The clarification in the italicized sentences of para 4.1.2 were taken from the Boards circular dated 25-7-2002 ibid and ld. SDR has laid emphasis on the same and has argued that a Form-H certificate would not be accepted as proof of export unless the SSI unit did not undertake exports either directly or through merchant-exporter directly from the SSI unit itself. In this case, it was pointed out by SDR, the exports were made .....

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s, 1957 reads as under : A dealer may, in support of his claim that he is not liable to pay tax under this Act in respect of any sale of goods on the ground that the sale of such goods is a sale in the course of export of these goods out of the Territory of India within the meaning of sub-section (3) of Section 5, furnish to the prescribed authority a certificate in Form Hduly filled, and signed by the Exporter along with the evidence of export of such goods. It is not in dispute that the appell .....

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of India. The above rule contemplated export of the goods by the purchaser. By no stretch of imagination can it be said that the above rule contemplated retention of possession of the goods by the dealer (appellants in the present case) for its direct exportation from their own premises by the buyer (M/s. A.V. Thomas Co. or other similar customer in this case). If the very physical export of the goods sold by the appellants to their customers is required to be made from the appellants premises, .....

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o/Challan No. (ANNEXURE ENCLOSED) dated (ANNEXURE ENCLOSED) for ₹ 88,64,004.15 have been utilized by me/us in the packing of the goods exported by me/us outside the territory of India, as per the details given in item (3) to (6) of the said schedule. The Schedule to the above certificate described the goods as boxes/packing materials and also provided export details including the particulars of the relevant Air Waybills in proof of export of goods across the Indian customs frontiers. It wa .....

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would not cease to be proof of export by mere reason of the fact that the exportation was done by the customer from his own premises and not directly from the appellantsfactory. Therefore, we are of the view that the interpretation given by learned SDR to the Boards Circular No. 648/39/2002 [reported in 2002 (51) RLT M48] would not be consistent with the provisions of law governing issuance of Form-Hcertificate. It is not the case of the Revenue that the cartons supplied by the appellants to A.V .....

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oxes by the SSI unit were not to be included in the aggregate value of clearances by the unit for the purpose of claiming the benefit of SSI exemption. The Revenue has no case that the Tribunals decision in Radhey Paper Udyog dated 27-1-2005 was not accepted. Earlier decision to the same effect, of the learned Single Member in the case of International Corrugators (supra) was also, apparently, accepted by the Revenue. 6. In Circular No. 212/96-CX., dated 20-5-1996, [reported in 1996 (14) RLT M84 .....

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procedure. Where proof of export was furnished within 6 months, the clearances made for export were not to be added to clearances for home consumption. Circular No. 648/39/2002-CX. [reported in 2002 (51) RLT M48] affirmed the position and further clarified that the above facility was available only in respect of exempted units which undertook exports themselves or through merchant-exporters. Ld. SDR argued that, for the above benefit, the SSI unit must be an exempted unit, i.e. unregistered uni .....

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nse, the appellants remained an exempted unit, thereby satisfying the first condition proposed by SDR. Circular No. 648/39/2002-CX. specifically refers to goods manufactured and cleared by SSI unit for packing of other goods for export. This circular deals with Form-H procedure as applicable to SSI unit selling goods to a merchant-exporter. This would mean that it is open to the merchant-exporter to use packing materials supplied by the SSI unit for packing his own goods for export. By this acti .....

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