TaxTMI 
TaxTMI 
2010 (3) TMI 862
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....n exported viz. (1) indigenous (manufactured in India) (2) Imported goods (Brought only for trading purpose). 2.4 In the first case it is observed that goods are not cleared from the factory of manufacturer or warehouse and the procedure set out in the Ministry's Circular No. 294/10/97-CX., dated 30-1-97 vide F.No. 209/2/97-CX-6 has not been followed. 2.5 In the second case, it is also seen that some of the goods which are exported were imported only for trading purpose. While going through the Notification No. 19/2004-C.E. (N.T.), dated 6-9-04, it is seen that the CVD (Addl. Duties) under Section 3 of Customs Tariff Act does not fall in the categories of the duty of excise as given in the explanation-1 of the above Notification and the goods exported does not satisfy the definition of input or capital goods. 2.6 The claimant was asked to comply with the above deficiencies and also granted personal hearing. They stated that the physical act of export of the goods procured indigenously as well as the imported goods is established by way of the documentary evidence produced i.e. copies of the Shipping Bills, Bill of Lading, ARE-I Forms duly verified by the Cus....
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.... 4.2 The Commissioner of Central Excise (Appeals) erred in observing that the order-in-appeal No. PKAS/184/Bel/2003, relied upon by the applicants, holding that the similar premises to be a "warehouse" is contrary to the statutory provisions and the same cannot be applied as a precedent in the present preceedings. The Commissioner of Central Excise (Appeals) erred in applying the ratio laid down in the judgment of the Apex Court in the case of Plasmac Machine Machine Mfg. Co. v. CCE reported in 1991 (51) E.L.T. 161, for holding that there is no estoppel. It is submitted that the said judgment of the Hon'ble Supreme Court of India was in the context of the approval of classification and has no relevance on the facts of the present case. It is submitted that the very Commissioner of Central Excise (Appeals) in the case of M/s. Colour Chem Limited by his order-in-appeal dated AT/198/RGD/2006 dated March, 31, 2006 following the orders of the Hon'ble Tribunal in the case of Indian Smelting and Refining Company Ltd. v. CCE reported in 1985 (21) E.L.T. 746, Himachal Steel v. CCE reported In 1988 (37) E.L.T. 291, Indian Explosive Ltd. v. CCE reported in 1996 (82) E.L.T. 270 and Pra....
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....ld that the applicants did not comply with procedure laid down in the said circular. 4.5 It is further submitted that the duty paid character of the exported goods were duly checked and verified by the jurisdictional Range Supdt., on the basis of duplicate copy of invoice in case of indigenous material and Bill of Entry in case of imported material. The particulars of duty payment duly certified by the Range Supdt. was submitted to the Asstt. Commissioner of Central Excise. 4.6 In any event, it is submitted that, in terms of para 6 of the said circular dated 30-1-97, the Board has decided that the cases where goods are clearly identifiable and co-related with the goods cleared from the factory on payment of duty, the condition of exports being made directly from the factory/warehouse should be deemed to have been waived. Other technical deviations not having revenue implications, may also be condoned. In the present case, it is not in dispute that each and every goods exported by the applicants is clearly co-related with the goods either cleared from the factory of the manufacturer or are exported by the applicants. The applicants are entitled to the rebate in terms....
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.....T.), dated 6-9-04 issued under Rule 18 of the Central Excise Rules, 2002 for claiming rebate of duty. 8. In this context, Government observes that as per Notification No. 19/2004-C.E. (N.T.), dated 6-9-04, the first condition is as follows : "That the excisable goods shall be exported after payment of duty directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order" 9. The warehouse was defined in Rule 140 of the Central Excise Rules, 1944 "any place or premises appointed or registered under Rule 140". That Rule 140 (equivalent to Rule 20 of Central Excise Rules, 2002) dealt with appointment and registration of warehouses for storage of excisable goods on which duty had not been paid (i.e. removal of excisable goods from factory or production to a warehouse ..................... without payment of duty). As per Rule 2(h) of Central Excise Rules, 2002, 'Warehouse" means any place or premises registered under Rule 9. "Rule 9 (registration). (i) Every person, who produces, manufactures, carries on trade, holds private store room or warehouse or otherwise uses excisable goods, shall ....