2013 (11) TMI 431

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....Central Excise, Division-II, Visakhapatnam. 2. Brief facts of the case are that the respondents M/s. PPG Coatings India Pvt. Ltd. (Formerly known as Sigma Kalon India Pvt. Ltd.), Visakhapatnam are manufacturers/first stage dealers of paints and thinners. They had cleared the goods as "Ship Stores" to be used on ships against the various ARE-Is and had claimed rebate of duty paid in terms of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended. The rebate claims filed by respondents rejected by the lower adjudicating authority on the ground that in terms of condition mentioned at sub-para (C) of para 2 of the said Notification, they had not produced any certification with regard to the adequacy of the supplies made to ship....

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.... case. 4.2 The Motor Vessels on board of which the Ship's Stores were supplied by the assesses viz. M.V. Ganga Sagar, Chemical Progress, Paloma C, M.T. Desh Shakti, Rena, M.V. Uttarakashi, M.V. Hardwar, M.T. Ankleshwar etc. appear to be Indian Vessels. Hence, it appears imperative to verify each trip undertaken by the said vessels to ensure that at the point of time when the Ship's stores were supplied by the assesses onboard such vessels they were in fact on a foreign run as required under the said notification so as to be entitled for the rebate of the duty on the paints and thinners supplied by the assesses as ship stores. In view thereof, production of a certificate from the Customs authorities certifying that the vessel was in ....

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....cord in the instant case to suggest that the assessee had indeed made any application to the Commissioner of Customs for issuance of a certificate of adequacy of the Ship's stores supplied by them. In the absence of the same, the Commissioner (Appeals) does not appear to be justified in holding that there was no necessity for the Commissioner of Customs to make the certification in this regard, even though the same was required under the said Notification. 4.4 Since in the instant case the assessee had not fulfilled both the conditions stipulated under the Notification No. 19/2004-C.E., dated 6-9-2004, the supervision of the clearance of the ship's stores for export by the Range Officers and the examination and endorsement thereby t....

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....ebate claims were rightly denied to them. 5. A Show Cause Notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. No such reply is received from their side so far. Applicant department vide letter dated 13-1-2012 reiterated the grounds of application. 6. Personal hearing scheduled in this case on 30-1-2012 and 29-5-2012. Nobody appeared for hearing from either side. No request is received for extension of hearing. 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. On perusal of records, Government observes that respondent have exported duty paid goods as ship stores and fi....

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....low the ship stores to be loaded on ship only when they are satisfied that they are not unusual and in high quantities unless such quantities of material are genuinely required for the ship. 10. Government notes that the powers under para 2(C) are vested in Commissioner of Customs and are not delegated to lower authorities. In this case respondent has not obtained any approval from Commissioner of Customs, therefore the condition 2(C) stands violated. As the respondent failed to satisfy the basic mandatory requirement of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 the rebate claim is not admissible to them. Hon'ble Supreme Court in its judgement in the case of M/s. Eagle Flask Industries Ltd. v. CCE, Pune - 2004 (171) E....