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TMI Blog2023 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A(1) of the Central Excise Act. 2. Briefly the facts of the present case are that the appellant is a public limited company and is engaged in the manufacture and clearance of two wheelers falling under chapter no. 87 of the First Schedule to the Central Excise Tariff Act, 1985. A show cause notice was issued to the appellant demanding duty of Rs. 5,12,692/- in respect of goods exported on FOC basis where no sale proceeds were received during the period from 13.04.2015 to 23.03.2017. The appellant filed reply to the show cause notice and the original authority confirmed the entire demand of duty amounting to Rs. 5,12,692/- along with interest and equal penalty. Aggrieved by the said order, the appellant filed the appeal before the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng GR waiver, investments, export/import remittances etc. and the same cannot be applied for interpreting Central Excise exemption notification and procedure. The levy and exemption of Central Excise duty on export transactions is governed by the Central Excise Act, Central Excise Rules and the Notification issued under the same. He further submitted that the impugned order referring to the RBI Master Circular for the first time without mentioning the same in the show cause notice, is bad in law because it is a settled law that a show cause notice is always the foundation upon which the department builds its case. He also submits that entire demand is bad in law as the impugned order was travelled beyond the show cause notice. He further su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterated the findings of the impugned order and submitted that the appellant has exported the goods in violation of the procedures and master circular issued by the RBI. She further submitted that the appellant has not submitted any supporting documents or evidence to lower adjudicating authority to prove that the goods were sent as samples or for testing/repairing purpose nor submitted any GR waiver. 6. After considering the submissions made by both the parties and perusal of the material on record, I find that the appellant has exported the goods on FOC basis without receipt of foreign currency. Further, I find that there is no condition under Rule 19 of Central Excise Rules, 2002 read with Notification 42/2002-CE (N.T.) dated 26.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of this, the condition regarding receipt of export proceeds cannot be imposed to demand duty foregone in respect of the goods cleared for export under bond/LUT. The duty on the goods can be demanded only if the goods have not been exported out of india within the stipulated period but there is no such allegation. In view of this, I do not find any infirmity in the impugned order. The Revenue's appeal is dismissed". 10. Further, I find that the impugned order relying upon the RBI Master Circular No. 14/2012-13 dated. 02.07.2012 is not justified because there is no allegation regarding the same in the show cause notice which is the foundation upon which the department has to build its case. Therefore, in my view, the entire demand i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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