Customs, Excise and Gold Tribunal - Delhi
C.C.E. vs Bhayana Electronics Industries (P) ... on 10 August, 1994
Equivalent citations: 1994(74)ELT905(TRI-DEL)
ORDER Shiben K. Dhar, Member (T)
1. This is an appeal filed by Revenue against Order-in-Appeal No. 268-CE/DLH/92, dated 14-5-1992 passed by Collector of Central Excise (Appeals), New Delhi allowing the respondents the refund under Rule 57H.
2. The respondents received an order from an Indian firm M/s. Chinar Exports Ltd. for manufacture, supply and export of sound recorders and reproducers. They imported the components for their final product and took the Modvat credit towards additional duty paid on such components. These goods were finally exported after the manufacture from their factory on the strength of AR-4 application. The fact that the goods had been exported from the factory for export has not been disputed.
2.1 Since the credit taken by the respondents towards Modvat could not be utilised towards similar products as exported, the respondents in terms of provision of Rule 57F(3) filed a refund claim for a sum of Rs. 2,23,281.59 towards BED and Rs. 10,663.46 towards SED for export of goods effect from January 1991 to March 1991 and a sum of Rs. 70,186.95 as BED and Rs. 3508.85 as SED for export of the above final product effect from October 1990 to December 1990. The refund claims were rejected by the Asstt. Collector on the ground that the goods have been exported under claim of drawback. The Collector (Appeals) on appeal remanded the case to Asstt. Collector for verification in regard to drawback claim. In his de novo proceedings the Asstt. Collector rejected the refund claim on the ground that the refund credit is admissible only to manufacturers who directly export their goods and not in case of manufacturers who export through merchant exporters.
3. In their appeal; the appellants Revenue have submitted that the respondents were asked to produce evidence to show that the drawback has not been claimed by the respondents under the provisions of Rule 57F(3) the refund of credit of duty is admissible only to manufacturers who directly export their products and not in case of those manufacturers who export through merchant exporters.
4. It is submitted by Shri M.M. Mathur, JCDR for the revenue that the goods were not exported by manufacturers but through merchant exporters. AR-4 application indicates that M/s. Bhayana Electronics Industries (P) Ltd. proposed to export through M/s. Chinar Exports Ltd., New Delhi. He, therefore, contends that the goods were removed from the factory for export but cleared to merchant exporters in India. The learned JCDR cited the case in the case of CCE v. GAVS Laboratories (P) Ltd., reported in 1994 (71) E.L.T. 717 in support of his contention.
5. The learned Advocate Sh. Naveen Mullick for the respondents submitted that what is relevant in 57F(3) is the fact of export.
The goods were allowed to be removed under bond by the Supdt. without duty. The bond had been executed before the Supdt. and the fact of export is not denied. The goods in fact moved directly from the manufacturers' premises for shipment in accordance with the procedure prescribed in such cases. He submitted that the case cited (supra) relates to DEEC scheme and the facts here are entirely different. The learned advocate cited the case of Oswal Agro Mills Ltd. etc. etc. v. CCE and Ors., reported at 1993 (66) E.L.T. 37 (SC) as relevant in this connection.
6. We have heared both sides and gone through the records of the case. The only ground on which the Asstt. Collector has rejected the refund claim is that under provision of Rule 57F(3) the refund of credit of duty is admissible to manufacturers who directly export their goods and not to those manufacturers who export through merchant exporters. The Asstt. Collector rejected the refund claim on the ground that the goods have not been exported directly by the manufacturers.
7. We find under proviso to Rule 57F(3) that the refund is allowed to the manufacturers, if the final products are cleared for exports under bond. The proviso is reproduced below :
"Provided that the credit of specified duty in respect of inputs used in the final products cleared for export under bond or used in the intermediate products cleared for export in accordance with sub-rule (2), shall be allowed to be utilised towards payment of duty of excise on similar final products cleared for home consumption on payment of duty, and where for any reason, such adjustment is not possible, by refund to the manufacturer subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette."
Neither Rule 57F(3) nor Notification issued under it specifically requires goods to be exported by the manufacturer under bond. Rule requires only export of goods and on such export being established, the manufacturer is entitled to refund. In the present case the fact of export has not been denied. AR-4 clearly shows that export has been allowed under bond from the premises of the manufacturers after merchant exporters executed the necessary bond. The practice of merchant exporters lifting goods from the premises of manufacturers after executing necessary bond is well established. Merely because merchant exporters exported the goods would not mean that goods in fact have not been exported in accordance with rules relating to export. It cannot be said that manufacturers' duty liability in regard to goods admittedly cleared for export is discharged since merchant exporters have exported those goods and yet in the same breath say that the merchant exporters could not export the goods under bond. Merely because AR-4 forms indicate consignees name as that merchant exporters would not mean goods have been... for home consumption particularly in view of the factum of the export of these goods not being denied. The case cited by the learned DR (supra) is distinguishable as that was a case under DEEC scheme. In the present case the matter relating to drawback was already examined by the Asstt. Collector in pursuance of de novo proceedings and that was not a issue before the Collector (Appeals) since the only ground the Asstt. Collector rejected the refund claim was that export had been done not by the manufacturers but through merchant exporters. We find no warrant for reading into Rule 57F(3) something that is not there. As had been held by Supreme Court in case of Oswal Agro Mills Ltd. etc. v. CCE, reported at 1993 (66) E.L.T. 37 (SC), "there is neither intendment nor equity in a taxing statute. Nothing is implied. Neither-can we insert anything nor can we delete but it should be interpreted and construed as per the words the legislature has chosen to employ in the Act or Rules. There is no room for assumption or presumptions."
8. We are, therefore, of the view that there is no merit in the appeal of Revenue. We accordingly uphold the Order and reject the appeal of the Revenue.