TaxTMI 
TaxTMI 
2010 (9) TMI 561
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....ir clearances for home consumption were within the limit prescribed under the relevant SSI exemption Notification and, therefore, they claimed exemption from payment of duty on those clearances during the aforesaid period. The department, after scrutiny of records and connected enquiries, issued a show-cause notice on 12-12-2006 under the proviso to Section 11A(1) of the Central Excise Act alleging inter alia that the assessee had cleared the specified goods for home consumption in excess of the limit prescribed under the relevant Notifications and consequently they were not entitled to claim SSI benefit. It was alleged that the cartons (packing materials) manufactured by the assessee and cleared to exporters without payment of duty were liable to be treated as clearance for home consumption on account of the fact that the goods were not directly exported from the factory of production and, therefore, the provisions of Rule 19(1) were not attracted. It was alleged that such clearances were liable to be included in the aggregate value of clearances for home consumption for the purpose of determining whether such aggregate value of clearance was within the limit prescribed under the ....
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....urpose of excluding the export goods from the aggregate value of clearances of the manufacturer claiming SSI benefit. The cited judgment also met the Revenue's objection about the goods having not been exported directly from the factory of production. It was held thus : "It would not cease to be proof of export by mere reason of the fact that the exportation was done by the customer from his own premises and not directly from the appellants' factory". According to the learned counsel, the decision in Vadapalani Press case is a total answer to the allegations raised in the show-cause notice in question. 3. Raising the plea of limitation, learned counsel points out that the relevant facts were very much within the knowledge of the department. It is submitted that the assessee had written to the Superintendent of Central Excise, of the Range concerned, as early as on 4-5-2001 apprising him of the fact that they were clearing packing material for home consumption as well as for export and that, in the latter case, the exporters used to provide the sales tax FORM as proof of export, along with Bill of Lading. In the said letter dated 4-5-2001, the assessee had also stated ....
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....ds. We find that the assessee filed Bills of Lading, Sales Tax forms like FORM-H, FORM-G1 etc. to prove that the cartons cleared by the assessee were actually exported. We find that in a similar factual situation, the Tribunal held in Vadapalani Press case that the sales tax forms evidencing sale of goods in the course of export were to be accepted as proof of export of goods manufactured by SSI unit, as per the Board's circular ibid. Had the learned Commissioner perused the Tribunal's judgment for a moment, she would, in all likelihood, have been convinced that the assessee's case stood squarely covered by that judgment. 6. Paragraphs 5 and 6 of the judgment in Vadapalani Press case are reproduced below: "5. After giving careful consideration to the submissions, we have found substance in the claim of the appellants that CBEC themselves had accepted "Form-H" certificates as proof of export vide Circulars No. 212/46/96-CX., dt. 20-5-1996 [reported in 1996 (14) RLT M84] and No. 648/39/2002-CX., dated 25-7-2002 [reported in 2002 (51) RLT M48] and para 4.1.2, Chapter 7 of the Central Excise Manual of Supplementary Instructions 2003-04. Para 4.1.2 ibid reads as under :- "....
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.... exportation has to be understood conjointly with the relevant provisions of the Central Sales Tax (Registration and Turnover) Rules, 1957. Rule 10(a) of the CST (R&T) Rules, 1957 reads as under : "A dealer may, in support of his claim that he is not liable to pay tax under this Act in respect of any sale of goods on the ground that the sale of such goods is a sale in the course of export of these goods out of the Territory of India within the meaning of sub-section (3) of Section 5, furnish to the prescribed authority a certificate in Form 'H' duly filled, and signed by the Exporter along with the evidence of export of such goods." It is not in dispute that the appellants obtained certificates in "Form H" from M/s. A.V. Thomas Co. and other similar customers and used the same before the Sales Tax authorities for exemption from payment of sales tax on the cartons sold to such customers. The Revenue has no case that the appellants did not obtain such exemption from payment of sales tax. This would mean that the Revenue has accepted the fact that the sale of 'printed cartons' by the appellants to the said customers was a sale in the course of export of the goods out of India. T....
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.... of "Form-H" certificate. It is not the case of the Revenue that the cartons supplied by the appellants to A.V. Thomas Co. and other similar customers were not exported. It is, however, pointed out that the cartons were not exported as such, but were only used as packing material for goods exported by the customers. We find that, in the case of M/s. Radhey Paper Udyog (supra), there was an identical factual situation. In that case, corrugated boxes supplied by the said party (SSI unit) were used by their buyer for packing shoes, which were exported. The Tribunal held that such clearances of corrugated boxes by the SSI unit were not to be included in the aggregate value of clearances by the unit for the purpose of claiming the benefit of SSI exemption. The Revenue has no case that the Tribunal's decision in Radhey Paper Udyog dated 27-1-2005 was not accepted. Earlier decision to the same effect, of the learned Single Member in the case of International Corrugators (supra) was also, apparently, accepted by the Revenue. 6. In Circular No. 212/96-CX., dated 20-5-1996, [reported in 1996 (14) RLT M84], the Board simplified the export procedure for SSI units. Where the export of g....