AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2011 (3) TMI 1370
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....ods supplied by M/s Unique Exports to M/s. Roman Overseas had suffered excise duty at the rates applicable. Upon eventual export of the goods manufactured by M/s. Roman Overseas with the use of inputs supplied by M/s. Unique Exports, M/s. Roman Overseas filed six rebate claims totalling to Rs. 17,00,163/- before the department for the duty paid on such goods in terms of Rule 18 of the Central Excise Rules, 2002. 2.1 While processing such rebate claims, the Range officer verified the genuineness of the duty payment particulars with respect to the goods supplied by M/s. Unique Exports. Upon such verification it was found that M/s. Unique Exports had purportedly purchased such goods from two agencies namely, M/s. Amar Enterprise and M/s. Harikrishna Enterprise. However, such agencies were found to be non-existent. It was thus noted that M/s. Unique Exports had falsely claimed cenvat credit on the basis of invoices issued by such non-existent firms. M/s. Unique Exports had since passed on such cenvat credit to M/s. Roman Overseas, department was of the opinion that M/s. Roman Overseas is not entitled to claim rebate since no duty was ever paid on the inputs received by M/s. Roman....
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....hat emerges from the order in original is that as per the competent authority, respondent M/s. Roman Overseas was not part of the fraud in nonpayment of excise duty. 2.4 Aggrieved by order in original, respondent M/s. Roman Overseas carried the matter in appeal before the Commissioner (Appeals). The Commissioner(Appeals) by his order dated 20-3-2006 allowed the appeal, reversed the order passed by the competent authority, held that respondent M/s. Roman Overseas is entitled to rebate as claimed. In the order it was emphasized that there was no allegation that M/s. Roman Overseas and manufactures are related persons or that such sale was not principle to principle basis. It was observed that M/s. Roman Overseas had taken full precaution to ensure that manufacturer supplier is registered with the department and invoices issued by them are in order. 2.5 Department, aggrieved by the order of Commissioner (Appeals) approached the Government invoking powers of revision under Section 35EE of the Central Excise Act. Such revision was however, dismissed by impugned order dated 7-1-2010. Aggrieved, department is before us challenging the orders passed by the Commissioner (Appeals....
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....icence. In the circumstances, the Customs authorities could not have refused to grant the benefit under the said licence. The Tribunal was therefore, justified in setting aside the duty demand." (3) In case of CC, Amritsar v. Ajaykumar & Co. reported in 2009 (92) RLT 883 (S.C.) = 2009 (238) E.L.T. 387 (S.C.), wherein judgment of the Tribunal in case of Ajay Kumar & Co. v. Commissioner of Customs, Amritsar reported in 2006 (205) E.L.T. 747 was confirmed wherein Tribunal had observed as under : "6. By applying the ratio as laid down by the Court in the above decisions, to the fact of the present case, it has to be held that the imports made under the DEPB Scrips, which were valid at the time of import, the subsequent cancellation of the same on the ground that original allottee procured them by fraud will not have any bearing upon the imports made by the appellant. There is nothing in the impugned order to reflect upon any mala fide on the part of the appellant or to show that he was a party to the fraudulent obtaining of scrips by M/s. Parker or had any knowledge about the tainted character of the scrips. As such, we are of the view that the imports made by the appellant....
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....conditions laid down in the notifications issued by the Government of India from time to time. In the present case, Notification No. 19/2004 would be relevant which lays down conditions for claiming such rebates. Relevant condition is condition No. 2, particularly clause (a) thereof which reads as under : "(a) 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. We may clarify that part of claim fall when such Notification No. 19/2004 was not in operation. It is however, not in dispute that previous notification also provided for similar conditions. We would therefore, refer to condition No. 2(a) for all practical purposes. 10. From the material on record noted above, we find that insofar as respondent M/s. Roman Overseas is concerned, it had purchased goods after payment of duty to the manufacturer. On such duty, respondent M/s. Roman Overseas was within its rights to claim cenvat credit which was passed on by the seller of the goods i.e. M/s. Unique Exports. It is of- course a fact that such goods were not....
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....ed on decision of Punjab and Haryana High Court in case of Golden Tools International v. Joint DGFT, Ludhiana reported in 2006 (199) E.L.T. 213 (P & H). It was however, a case where the petitioners themselves had imported duty free item on the basis of DEPB allowance which was found to have been fraudulently obtained. It was in this background that the Court held that same would tantamount to contravention of provisions of Foreign Trade (Development and Regulation) Act, 1992. Penalty imposed was thus upheld (3) Reliance was also placed on decision of Punjab and Haryana High Court in case of Friends Trading Co. v. Union of India reported in 2010 (254) E.L.T. 652 (P & H), wherein again DEPB scrips were found to have been obtained by producing false documents. There again the person claiming the duty exemption was the same as one who was found to have committed fraud. (4) Reliance was placed on decision in case of Sheela Dyeing & Printing Mills P. Ltd. v. C.C.E. & C., Surat-I reported in 2008 (232) E.L.T. 408 (Guj.), wherein issue involved was whether while taking cenvat credit on inputs, the appellant had taken reasonable steps to ens....