Custom, Excise & Service Tax Tribunal
Cc&Ce, Visakhapatnam vs Manasa Industries Pvt. Ltd on 22 January, 2018
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Division Bench Court I Appeal No. C/322/2008 (Arising out of Order-in-Original No. 32/2007-08 (RS), dated 19.12.2007 passed by CCCE&ST (Appeals), Visakhapatnam) CC&CE, Visakhapatnam ..Appellant(s) Vs. Manasa Industries Pvt. Ltd. ..Respondent(s)
Appearance Mrs. Bina Bakshi, Superintendent/AR for the Appellant. None for the Respondent.
Coram:
Honble Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) Honble Mr. MADHU MOHAN DAMODHAR, MEMBER(TECHNICAL) Date of Hearing: 22.01.2018 Date of Decision: 22.01.2018 FINAL ORDER No. A/30104/2018 [Order per: M.V. Ravindran]
1. This appeal is filed by Revenue against Order-in-Original No. 32/2007-08 (RS), dated 19.12.2007.
2. None appeared on behalf of the Respondent despite notice. Since the matter is of 2008, we take up the same for disposal even in the absence of any representation.
3. Heard Ld. DR who reiterates the grounds of appeal.
4. The relevant facts of the case for consideration are during the period 1999-2000 and 2000-2001, respondent had sent Polyster Grey Fabrics for the purpose of export as per the permission granted by Dy. Commissioner of Central Excise, Vizianagaram. Subsequently, these fabrics were exported either by respondent themselves or through third parties/merchant exporters, directly from the job workers premises. It was the case of the Revenue in the show cause notice that exports from job workers premises directly is not permissible of the third parties hence it was concluded that demand of duty be raised in respect of the exported goods. The adjudicating authority after considering the submissions made and also the Development Commissioners permission for export of goods, held in favour of the respondent. Revenues grievance is that exports are not in accordance with the procedures.
5. We find that the factual findings of the adjudicating authority needs to be reproduced in this case.
7. Heard the assessee on 14.08.2007 wherein it was submitted that Development Commissioner vide his letter No. 8/EOU-495/VSEZ/2006/4887, t. 14.08.2006 had informed the assessee that Ministry of Commerce, New Delhi vide their letter dt. 24.7.2006 had conveyed ratification approval for regularization of exports and therefore it was urged that matter be dropped.
8. I have carefully gone through the record it is seen that the SCN has been issued because the assessee has effected exportsfrom third party premises which is not permissible as per para 9.36 of Hand Book of procedures during the relevant period. But as the matter has been subsequently ratified by BOA, Ministry of Commerce, Govt. of India conveyed vide letter dt. 14.8.2006 of Development Commissioner, VSEZ, there is no further issue to be decided as exports themselves have not been challenged per se. Also it is seen from the correspondence that Commissioner of Customs & Central Excise, Surat-I Commrt., vide his letter dt. 5.9.2001 informed that it was clearly indicated on AR 4 that exports have been made under 100% EOU scheme and the letter was merely meant to alert this commissionerate against a new modus operandi of 100 EOU, located in different parts of country trying to avail double benefit i.e. to account for goods against their export obligation and at the same time get rebate in cash through job workers or third party exports. And as discussed this procedural infraction has since been condoned by Ministry of Commerce, Govt. of India.
9. If exports are accepted to be correct after ratification by Ministry of Commerce, Govt. of India, the next part of SCN i.e. assuming that DTA sales are incorrect/unauthorised in as much as they have been permitted on wrong export statistics also does not sustain. Therefore charging of full customs duties on par with imports does not arise. It is also observed that the impugned goods are manufactured out of indigenous raw materials are eligible for concessional rate of Excise Duty under Notification No. 8/97 as amended relying on following case laws.
i) 1992(60)ELT 526 (Cal) SCB Chemical Manufacturing Co. Vs. ADC.
ii) 1993(68)ELT 82(T) Indo Swiss Times Vs Collector.
iii) 1978(2)ELT (J180) Cal. Union Carbide Co. Ltd. Vs. AC
iv) 1977(1)ELT (J193) (Mad) Murugan & Co. vs. DC
In this case, it is observed that DTA sales have been effected on payment of excise duty. Therefore no further duty needs to be demanded.
6. It can be seen from the above factual position that the respondent was able to produce the certificate which indicated that the export obligation has been fulfilled. The appeal of Revenue is not contradictig the factual findings, by adducing any evidence. On the face of such factual position, we find that Revenues appeal has no merits and same stands dismissed.
(Order dictated & pronounced in open court)
(MADHU MOHAN DAMODHAR) (M.V. RAVINDRAN)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
vrg
(1) Appeal No. C/322/2008