TMI Blog2003 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... i, as seen from Shipping Bills and Mate receipt. (3) Name of M/s. IKEA Trading (India) Ltd., was not mentioned on the said AR-5/ARE-2 and no disclaimer certificate was given on the same. Therefore a personal hearing was given to the exporter to clarify the above-mentioned issues, on the basis of which Deputy Commissioner, Central Excise, Division F-1, Mumbai-I, vide Order-in-Original No. F-1/3/2002, dated 4-2-2002 rejected the above said rebate claims, while making the following observations. (1) The exporter neither manufactured nor exported the goods in question. Procedure laid down by Trade Notice No. 45/2001 and Rule 18 of Central Excise Rules, 2001 was also not followed by the exporter. (2) With reference to the goods manufactured from fabrics received under Invoice No. 78/08-04-2001, it is seen that the description of fabrics used in the exported goods are different from the fabrics actually used in the manufacture of the said exported goods. (3) The name of merchant-exporter viz. M/s. IKEA Trading (India) Ltd. is not mentioned in the AR 5 which implies that they have not exported the goods. (CBEC Circular No. 164/75/95-CX, dated 18-12-95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing grounds :- (1) M/s. Creative Mobus Fabrics Ltd. are neither exporter nor manufacturers and it is evident from the Shipping bills submitted by them. (2) CBEC Circular No. 81/81/94-CX, dated 25-11-94 makes a requirement that the disclaimer certificate should be given in favour of the exporter on the AR-4, in the instant case there is no such disclaimer certificate given on the body of the aforesaid document, which is in contravention of the above-mentioned Circular. (3) In one specific case involving a Rebate of Rs. 41,144/- in respect of AR-5 No. 4, dated 16-4-2001 it is clearly seen that the raw material has been shown as "cotton 100% shirting 153 cms" whereas the exported goods are bed sheets and pillow covers. (4) Circular No. 120/95-Cus., dated 23-11-1995 clearly mentions several conditions for export by a third party to be eligible towards fulfilment of export obligations of EPCG licence holder. In the instant case, the exporter has not fulfilled any of the conditions. (5) Commissioner (Appeals) has stated that Rule 12 of Central Excise Rules provide for benefit for rebate to the exported goods and not to the person exportin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he job workers on contractual basis and these units are merely processors of the fabric in question and they are the manufacturers of these fabrics. From the premises of the made up converter the goods in question are subsequently sought to be exported under the Central Excise Procedure and in conformity of the Central Excise Act and the Rules made thereunder and under the physical supervision of the Jurisdictional Central Excise Officers. The goods in question are cleared from the job workers premises under cover of Export documents like the AR-5/ARE-2 as per the provision of the Central Excise Rules, they physically transfer the goods in question to the Customs Area for physical Examination by the Customs Officers. At this point of time the merchant-exporter comes into the picture wherein the merchant- exporter, viz. M/s. IKEA Trading Co., a recognised Exporter, generates Export related documents like the shipping bills and other required documents, wherein on the documents they are mentioned as the 'Supporting Manufacturers'. (b) That in the instant cases, the Export is under either AR-5 or ARE-2 document and not under AR4 document; herein the concerned firm has g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as "sheeting" and not "shirting". In fact there are many invoices of the same processor wherein the writing is of the same clerk who has written this invoice No. 78; in all other invoices, the description is reads "sheeting" and the same has been accepted by the ld. Appellant. An objection on this one particular invoice is without any evidence. In fact the converter where the said fabric is received has very clearly in his documents shown the description of the fabrics as "sheeting" and also that the said converter M/s. Kamal Trades who is a licensee and is registered with Central Excise, has also filed a declaration with their jurisdictional Central Excise Superintendent Office on receipt of this lot where the description is clearly shown as "sheeting" and this declaration has also been verified by the Central Excise Officer in charge of the unit, who has authorised the opening and cutting of the fabric in question for the manufacture of made ups as per the formula approved by the Jurisdictional Deputy Commissioner of Central Excise. (e) Moreover this particular point is in respect of only one Rebate claim and they have filed 38 rebate claims and it would be presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of the bales/packages. On being received in premises M/s. Kamal Trades, the said converter files a declaration with the jurisdictional C. Ex., Range Supdt. Office. The declaration gives the details of the description of the fabrics, the quantity received, the invoice number, the address of the sender, etc. On receipt of this declaration, an Officer of the Range visits the premises of M/s. Kamal Trades for physical verification and then signs on the body of the declaration and also on the body of the respective invoice as allowed for opening. After this the converter files an application with the Divisional Deputy Commissioner, C. Ex., for approval of the formula for conversion of these receipted fabrics into made ups i.e. bed spreads and pillow covers, herein in this application a detailed worksheet giving the quantum of fabrics that will be consumed for the manufacture of one individual bed cover and pillow cover is given along with the wastage, if any. After verification by the Officers of the Division, the Deputy Commissioner accords sanction for the formula and also confirms the permission to work under Rule 18 of Central Excise (No. 2) Rules, 2001. On receipt of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (k) It is a well settled legal position that substantive benefit of rebate in case of export cannot be denied for procedural and/or technical non-compliance. This is more so when factually they have established that the same duty paid goods (fabrics) were used/consumed in the manufacture of export goods. They rely on the following cases : (i) Krishnan Filaments Ltd. - 2001 (131) E.L.T. 726 (ii) Seema Silk Sarees - 2001 (127) E.L.T. 307 (iii) Allanasons Ltd. - 1999 (111) E.L.T. 295 (iv) Indo Euro Textiles Pvt. Ltd. - 1998 (97) E.L.T. 550. 5.Opportunities for personal hearing were given on 24-12-2002, 6-2-2003 and 2-4-2003. Sh. V.S. Nankani and Sh. M.M. Sukheja, Advocates appeared on behalf of the Respondents and reiterated earlier submissions. 6.Government has carefully considered the Order-in-Original, Order-in-Appeal and the submissions made. 7.The first objection of the department is that, M/s. Creative Mobus Fabrics Ltd. are neither exporter nor manufacturers of the goods as is evident from the Shipping Bills. The Original Authority, also, observed that as per para 8.2 of Export Procedure in the Central Excise Manual, only a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of discharge of export obligation of licence holder, a view had been expressed that the definition of exporter under Section 2(20) and of importer under section 2(26) of the Customs Act, 1962 require that there can be only one importer/one exporter at a time for the goods exported or imported, as the case may be. The matter was discussed by the Board and the issue was also referred to the Law Ministry for opinion. The Law Ministry have now clarified that Section 13 of the General Clauses Act, 1897 provides that unless there is anything repugnant in the subject, words used in singular shall include the plural and vice versa. Accordingly the terms 'Exporter' and 'Importer' can be said to cover one or more than one exporter/importer of the goods within the meaning of Section 2(20) and Section 2(26) of the Customs Act, 1962. In view of Ministry of Law's opinion, it has been decided that there is no objection on to allowing third party exports under the Customs Act". 10.In view of the above factual and legal position, Govt. is of the opinion that, it cannot be said that M/s. Creative Mobus Fabrics are neither manufacturers nor exporters of the impugned goods. This objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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