9911796707
TMI Blog2018 (11) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... per Condition No. (viii) of the Customs Notification No.. 96/2009-Cus. By the impugned order, Ld. Commissioner has confirmed the demand for recovery of rebate along with interest under Section 11AB/11AA and imposed equal amount of penalty under Section 11AC. Being aggrieved by the said impugned order appellant filed the present appeal. 2. Shri. Willingdon Christian, Ld. Counsel appearing on behalf of the appellant submits that firstly, the subject Condition No.(viii) of the said Customs Notification No. 96/2009-Cus is not applicable to the appellant's case, as the appellant had not availed export rebate in respect of materials which they had imported duty free under the Notification No. 96/2009-Cus. He further submits that the subject Notification No. 96/2009-Cus is only for the sole purpose for allowing the benefit of exemption from payment of Customs duty on imports against advance authorization. The benefit of this Notification was availed by the appellant in respect of two imported raw materials, namely, Resin and Additives. Even if, the alleged contravention of Condition No.(viii) of the Notification No. 96/2009-Cus is to be held in favour of the Revenue, then also the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, which is not permissible in law. In respect of this above submissions, he placed reliance on the following judgments. * Spentex Industries Ltd. Vs. CCE-2015-TIOL-239-SC * Arvind Mills Ltd. Vs. CCE-2008 (240) ELT 613 (T) * Mardia Chemicals Ltd. Vs. CCE-2006 (199) ELT 110 (T) * National Tools (Export) Vs. UOI- 2017 (348) ELT 638 (Raj.) * Hi Speed Offsets Vs. CCE-2014 (304) ELT 3 (Del) * Rajguru Enterprises Pvt. Ltd. Vs. CC (Export)-2011 (266) ELT 286 (Export) * Bhagwati Gases Ltd. Vs. CCe- 2008 (226) ELT 478 (T) * Coastal Gases & Chemicasl Pvt Ltd. Vs. CCE-1988 (33) ELT 437 (T) * CCE Vs. Maharashtra State Bureau of Test Book Production & Curriculum Research-2015 (39) STR 235 (T) * Wimco Limited Vs. CCE 1986 (26) ELT 877 (T) * Zenith Spinners Vs. UOI-2015 (326) ELT 97 (Guj.) * CCE Vs. Ineos ABS Limited- 2010 (254) ELT 628 (Guj.), 2011 (267) ELT A155 (SC). 3. Shri. L. Patra, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records, we find that in the facts of the present case the adjudicating authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to quantity or proportion in which the materials are actually used as well as the quality. The declaration shall also contain the tariff classification, rate of duty paid or payable on the materials so used, both in words and figures, in relation to the finished goods to be exported. (2)Verification of Input-output ratio. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise shall verify the correctness of the ratio of input and output mentioned in the declaration filed before commencement of export of such goods, if necessary, by calling for samples of finished goods or by inspecting such goods in the factory of manufacture or process. If, after such verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise is also satisfied that there is no likelihood of evasion of duty, he may grant permission to the applicant for manufacture or processing and export of finished goods. (3)Procurement of material. - The manufacturer or processor shall obtain the materials to be utilised in the manufacture of the finished goods intended for export directly from the registered factory in which such goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having jurisdiction of the place approved for manufacture or processing of such export goods. Explanation. - "duty" means for the purposes of this notification, duties of excise collected under the following enactment, namely :- (a) the Central Excise Act, 1944 (1 of 1944); (b) the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978); (d) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by Section 169 of the Finance Act, 2003 (32 of 2003) and further amended by Section 3 of the Finance Act, 2004 (13 of 2004); (e) special excise duty collected under a Finance Act; (f) additional duty of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under clause 81 read with clause 83 of the Finance (No. 2) Bill, 2004. Annexure ARE 2 No.______________ Original (White)/Duplicate (Buff)/Triplicate (Pink) Quadruplicate (Green)/Quintuplicate (Blue) Form A.R.E. 2 Combined application for removal of goods for export under claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... _____ is being claimed S1. No. Name/ description of materials/ packing with technical specification/ Quantity Central Excise Tariff Subheading Unit Qty. used Name of Supplier Invoice No. and Value / Unit (Rs.) Assessable Value/ Unit (Rs.) Rate of Central Excise duty Duty Amt. per unit (Rs) Total Wastages Rebate admissible under rule 18 (Rs.) Remarks Recoverable Irrecoverable (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) Declaration : (a) We hereby certify that we have not availed facility of CENVAT credit under CENVAT Credit Rules, 2002. (b) We hereby declare that the export is not in discharge of export obligation under a Value based Advance License issued prior to 31-3-95. (c) We hereby declare that the materials on which input stage rebate in claimed are not sought to be imported under a Quantity Based Advance License issued prior to 31-3-95. (d) We further declare that we shall not claim any Drawback on export of the consignment covered under this application. (e) I/We hereby declare that the above particulars are true and correctly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Superintendent of Central Excise subsequent to clearances. For this purpose, a detailed verification report may be submitted by the Superintendent to the Assistant/Deputy Commissioner of Central Excise along with Triplicate copy of A.R.E. - 2. Note 4 : The original, duplicate and Quintuplicate shall be returned to the manufacturer for presenting to the Customs Officer. PART B Certification by the Officer of Customs Certified that I have examined the consignment described overleaf and the seals on the packages were found intact and I have satisfied myself that particulars of the consignment are as specified overleaf except for the shortages mentioned below : 1. ___________________________________________________________ _____ Certified that the exports are not under Duty Drawback Scheme. It is further certified that exports are not in discharge of export obligation under Value Based Advance License or a Quantity Based Advance License issued before 31-3-95. 2. Certified that all copies of Shipping Bill/Bill of export contain endorsement of A.R.E. 2 No. in the space provided for indicating ARE 1. 3. Certified that the consignment was shipped under my supervision under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supporting manufacturer in cases where the authorisation has been issued to a merchant exporter; and (b) the shipping bill number(s) and date(s) and description, quantity and value of exports of the resultant product in cases where import takes place after fulfilment of export obligation; or (c) the description and other specifications where applicable of the imported materials and the description, quantity and value of exports of the resultant product in cases where import takes place before fulfilment of export obligation; (iii) that the materials imported correspond to the description and other specifications where applicable mentioned in the authorisation and the value and quantity thereof are within the limits specified in the said authorisation; (iv) that in respect of imports made before the discharge of export obligation, the importer at the time of clearance of the imported materials executes a bond with such surety or security and in such form and for such sum as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, binding himself to pay on demand an amount equal to the duty leviable, but for the exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai, Cochin, Coimbatore, Dabolim (Goa), Delhi, Hyderabad, Indore, Jaipur, Kolkata, Lucknow (Amausi), Mumbai, Nagpur, Rajasansi (Amritsar), Srinagar, Trivandrum and Varanasi or through any of the Inland Container Depots at Agra, Ahmedabad, Anaparthy (Andhra Pradesh), Babarpur, Bangalore, Bhadohi, Bhatinda, Bhilwara, Bhiwadi, Bhusawal, Chheharata (Amritsar), Coimbatore, Dadri, Dappar (Dera Bassi), Daulatabad (Wanjarwadi and Maliwada), Delhi, Dighi (Pune), Durgapur (Export Promotion Industrial Park), Faridabad, Garhi Harsaru, Gauhati, Guntur, Hyderabad, Jaipur, Jallandhar, Jamshedpur, Jodhpur, Kanpur, Karur, Kota, Kundli, Loni (District Ghaziabad), Ludhiana, Madurai, Malanpur, Mandideep (District Raisen), Miraj, Moradabad, Nagpur, Nasik, Pimpri (Pune), Pitampur (Indore), Pondicherry, Raipur, Rewari, Rudrapur(Nainital), Salem, Singanalur, Surat, Surajpur, Tirupur, Tuticorin, Udaipur, Vadodara, Varanasi, , Waluj (Aurangabad) or through the Land Customs Station at Agartala, Amritsar Rail Cargo, Attari Road, Changrabandha, Dawki, Ghojadanga, Hilli, Jogbani, Mahadipur, Nepalganj Road, Nautanva (Sonauli), Petrapole, Ranaghat, Raxaul, Singhabad and Sutarkhandi or a Special Economic Zone not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .E., dated 9th September, 2003, 56/03-C.E. dated 25th June, 2003 and 39/01-C.E., dated 31st July, 2001; (xi) that in relation to the said authorisation issued to a merchant exporter, any bond required to be executed by the importer in terms of this notification shall be executed jointly by the merchant exporter and the supporting manufacturer binding themselves jointly and severally to comply with the conditions specified in this notification. 2. Where the materials are found defective or unfit for use, the said materials may be re-exported back to the foreign supplier within six months from the date of clearance of the said material or such extended period not exceeding a further period of six months as the Commissioner of Customs may allow : Provided that at the time of re-export the materials are identified to the satisfaction of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, as the materials which were imported. 3. Notwithstanding anything contained in this notification, the actual user condition specified in condition numbers (viii) and (x) shall not be applicable in respect of authorisation issued for import of raw sugar for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant have scrupulously followed the procedure and also obtained the permission, only after compliance thereof the rebate was sanctioned, since, in view of this position, it is not permissible in law to import any extraneous conditions of some different Notification into the provision of rebate and rebate cannot be rejected for that reason. Similarly, by reading the Notification No. 96/2009- Cus there is no condition with reference to the rebate provision of Rule 18 and Notification No. 21/2004-CE. From the facts of the case it is undisputed that even by stretch of imagination it is interpreted that due to contravention of the condition of Notification No. 96/2009-Cus the rebate cannot be sanctioned. We find that the appellant have claimed the rebate only in respect of indigenously procured raw material on which no benefit of Notification No. 96/2009-Cus was availed, therefore, on this fact even the allegation in the show cause notice even though it is not sustainable as irrelevant with the sanction of rebate claim under Rule 18. Therefore, on both counts the adjudication authority has gravely arred in passing impugned order by which recovery of the sanctioned rebate wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
