TMI Blog2017 (11) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... consistently taken a stand that if the supply to the merchant exporter is against Form14B/Form-H, the same will be treated as export clearance - Therefore, in the present case the goods admitted supplied against Form 14-B which should be treated as export and the same should not be included in the aggregate clearance value of ₹ 100 lakhs provided under N/N. 8/2001-CE & 8/2002-CE. However, the adjudicating authority as well as the first appellate authority have not verified the factual aspect and they have rejected the claim of the appellant's goods sold to the merchant exporter is export clearance only on the basis that goods were not exported directly from the appellant's factory - matter needs to be remanded to adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led appeal before the Commissioner (Appeals), who also concurring with the views of the adjudicating authority, rejected the appeal, therefore, the appellants are before us. 2. Shri Prakash Shah, Ld. Counsel appearing on behalf of the appellant submits that there is no dispute that the goods sold to merchant exporter have been physically exported. Against such sale, the merchant exporters have provided form 14B. Since the appellant was unregistered unit, they were not required to follow the procedures of ARE-1. However, form 14B provided by the buyer is treated as proof of export. Therefore, such clearance should not be added in the aggregate value of exemption limit under Notification No.8/2001-CE 8/2002-CE. He submits that the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judgements: i) Koroes India Ltd. - 2003 (158) ELT 658 (Tri-Del), which was upheld by Bhandari - 2015 (322) ELT A-105 (MP) ii) Venkateswara Electronics - 2007 (218) ELT 297 (Tri-Chennai) 4. We have carefully considered the submissions made by both sides and perused the records. We find that the facts are not much in dispute that the branded goods were sold to merchant exporter who in turn exported the same. The appellant submitted all the relevant shipping bills under which the appellant's goods were exported by the merchant exporter. The appellant also produced Form 14B of sales tax provided by the merchant exporter. On perusal of Form 14B, we observed that the invoices under which the appellants have sold the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be against Form-H/Form-14B. The very same dispute that whether to clear the goods directly from the unit of the SSI manufacturer has been dealt with in detail by this Tribunal in the case of Bhalaria Metal Craft Pvt. Ltd. (supra) , the relevant para of the said judgement is re-produced below: 4. We have carefully considered the submissions made by both sides. We find that the appellant is availing SSI exemption. Accordingly, they are not registered with the Central Excise. The Board vide Circular No. 648/39/2002-CX dated 25.7.2002 had prescribed simplified export procedure for small scale manufacturer. The Boards Circular is reproduced below: - I am directed to refer to Part III of Chapter 7 of Central Excise Manual issued in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof 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 the present case, we find that the goods were directly supplied by the appellant manufacturer from their factory to the merchant exporter and the merchant exporter in turn exported the goods. Therefore, in our considered view, the condition of the Circular that export should be through merchant exporters or directly from the unit itself stand fulfilled. Whenever the manufacturers goods are exported through merchant exporter, invariably the goods are sold by raising invoices to the merchant exporter and, thereafter, the merchant exporter export the goods and for that reason the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants units is misleading of the clarification given in the Boards Circular. In our considered view, if the supplies made by the appellant get correlated with the details bearing in the Sales Tax Form H and/or Form 14B, the same must be accepted as proof of export and neither any duty can be demanded on such clearances nor the same is includible in the aggregate clearance value of the exempted goods under SSI 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
