Customs, Excise and Gold Tribunal - Mumbai
Silverwing Investment & Trading Co. P. ... vs Commissioner Of Customs, Acc, Mumbai on 30 August, 2001
Equivalent citations: 2002(149)ELT601(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. Appeal taken up for disposal with consent of both sides.
2. The appellant obtained by transfer an advance licence and utilised it for the import of goods which it cleared without payment of duty in terms of notification 203/92. The goods were cleared in 1994. The notice issued to it dated 29.1.1999 proposed denial of the benefit of the notification on the ground that modvat credit had been availed of in the manufacture of the exported product, contravening one of the conditions subject to which the exemption is available. It also invoked the extended period contained in the proviso under Sub-section (1) of Section 28 of the Act on the ground that the importer wrongly declared on the export document that modvat credit had not been availed of. The Commissioner having confirmed the demand for duty and imposed penalty, the importer is before us.
3. The appellant being a transferee of licence, it would be evident that it would not have filed any documents for export and therefore could not have made any wrongful declaration in this document. The export consequent upon which the licence was granted was made by the person to whom the import licence was initially granted and it is he who would have filed the documents for export. The basis for the claim that the modvat credit had been availed of therefore is flawed. There is no evidence showing that the modvat credit was availed of by the exporter. It will therefore follow that there is no lawful basis for the duty and penalty.
4. The appeal is accordingly allowed and the impugned order set aside.