AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (1) TMI 1052
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....appellant - assessee, the CESTAT took note of the contention that the exported goods were examined, their value was verified and the quantity was taken into consideration while allowing clearance. In para 7, it has taken note of the Circular dated 16.01.2004 (supra) and found that the benefit under DEEC Scheme was not denied to the appellant. Therefore, denial by the Commissioner has been upheld. Thus, only limited issue argued before this Court by the appellant is whether such denial is really necessary. 2. We have heard Shri Sinha with Shri Rode, learned counsel for the appellant - assessee and also Shri Deshpande, learned counsel for respondent No. 2 - Department. After appellant's arguments, learned counsel for the department completed his reply. Then as requested by local counsel for the appellant, date as desired by outstation counsel for the appellant was given to sum up. The said date was 30.10.2015 which happened to be the last working day before Diwali Vacation. On that date, outstation counsel for the appellant could not attend as he was not keeping good health. We, therefore, granted him leave to place on record his rebuttal to reply arguments in writing and closed....
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....aid order, the Commissioner takes note of the fact weight of export commodity as certified in export invoice attained finality. It further found in para 10.5 that the parties agreed that there was no dispute about fact of export and realization of export proceeds. In this background, it proceeded to look at Board's circular dated 16.01.2004 having No. 4 of 2004. 5. In para 13.1, it has recorded a finding that the assessee/ noticee on their own failed to utilize the Advance Licenses and it was not their case that the department prevented it from availing the benefit of DEEC Scheme. It further found that the conversion was not claimed within one month and the request was made almost after one year. Request for reconversion was, therefore, held to be by way of after thought. In para 13.3, it has taken note of the fact that the circular speaks about permitting conversion of "Free Shipping Bills" into "Drawback Shipping Bills" and the assessee never filed Free Shipping Bills. It exported goods under quantity / value based Advance license. Hence, the case of assessee/ noticee does not fall under para 3.1 or 3.2 of the Circular. It then takes note of settled legal position that circu....
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....ut that rebate claimed was sanctioned by the Commissioner on 27.08.2002 because of declaration contained in declaration for removal of excisable goods in Form No. ARE1 on 05.08.2012. Rule 12(a)(1)(ii) requires a statement that no rebate has been claimed and Rule 12(ii) also requires that there should not be separate claim for rebate. In this situation, when the appellants obtained two advance licenses, they have not produced it on record. The advance license is always issued for import in future and, therefore, duty free material imported on its basis, must be used in production. The appellants have not imported any such material and as such, have not produced any final produce by consuming it. There is no export of such final product and hence, there is no question of rebate. The export on which the appellants rely, was also on the strength of advance license and, therefore, rebate has been sanctioned on goods which were cleared. He, therefore, states that the rebate was allowed on finished goods and imported raw material was received by the appellants duty free. In this situation, according to him, no case is made out and reliefs as claimed cannot be granted. 10. The questions o....
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....e of duty or for service tax under Central Excise Rules, 2002, or any other law has been or will be made in respect of duties of Customs and Central Excise paid on containers, packing materials and service tax paid on input service used in manufacture of exported goods. It is no doubt true that this provision has come into force on 13.07.2006 and was not in force in 2002. However, obvious intention is to avoid same benefit being availed again. To us, it appears to be clarificatory in nature & therefore, regulating the case of Appellant also. 13. The advance license is always issued to allow duty free import of inputs which are physically incorporated in export product. Thus, advance license is to be used in future and is never issued for imports already made or exports effected. It casts an obligation on person using advance license that he exhausts the raw material imported duty free on its basis in manufacturing of a final product & exports it. 14. The perusal of order dated 11.05.2007 passed by the CESTAT reveals that in para 2, it takes note of the fact that Invoice dated 05.08.2002 certified weight of exported product to be 23100 kgs., while gross weight to be 23265 kgs., an....
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....t for conversion was being processed. The truthfulness or otherwise of one set of documents in such cases cannot be made applicable to the other set of documents merely because such documents had some similarity. We also endorse this finding as each export & shipping bill will constitute an independent document to be understood only in the context of data contained therein. No inference can be drawn that formalities shown to be complied with in some other export instance must have been completed in other matter also. 17. These facts are required to be mentioned because two Advance Licenses pressed into service here & with which this Court is concerned, mention the weights separately. Their details are contained in the order of the Commissioner dated 22.07.2004. Those are : (A) Advance License Nos. 03101055112/3/0300 dated 26.08.2002 Export item name QTM. UOM FOB(Rs. ) FOB(Currency) 63/241pp woven sacks With/ without liner or With/ without UV stabilizer (2% by wt.) or with/ without coting lamination with Kraft paper. liner 60*90 cms. (p.p.; 57850 kgs &PE 35750 kgs.; total wt. 93600) 650000.00 00 Number 4214000 86000.00 (B) Advance License Nos. 0310157442/3/03/00 dated 0....
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.... under quantity based Advance License. It also stipulates the amount of rebate claimed as Rs. 2,32,848/. 22. At this stage it will be proper to take note of the law. The legal provisions in this respect are contained in Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. Rule 12 is the relevant rule, it reads as under : "RULE 12. Statement / Declaration to be made on exports other than by Post. ( 1) In the case of exports other than by post, the exporters shall at the time of export of the goods - (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary or deciding whether the goods are entitled to drawback, and if so, at what rate or rates and make a declaration on the relevant shipping bill or bill of export that (i) a claim for drawback under these rules is being made; [(ii) in respect of duties of Customs and Central Excise paid on the containers, packing materials and materials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2....
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....e grievance of exporters that they are forced to file Free Shipping Bill & for the purposes of seeking its conversion at a later date, it becomes difficult for them to prove this fact. It amends the circular no. 6 of 2003 dated 28.1.2003. Amendment was made on account of the fact that no written orders forcing the exporters to file free shipping bills, were issued by the Custom authorities. The Commissioner has been given power to examine every such case on its merits as per conditions specified in paras 4(a), (b) and (c) of Circular No. 6 of 2003 with added condition that exporters should not have availed benefit of any Export Promotion Scheme and no fraud/ suspected manipulation and no investigation have been made against the party - exporter in respect of such export. 24. Though it is claimed by the Appellant that the rebate has been allowed only on customs duty paid on finished product and the authorities have accordingly issued certificates mentioning that facility available under Rules 18 and 19 of the Central Excise Rules, 2002, has not been availed in respect of exempted goods, document at Annex. IV (specimen) shows the amount of rebate claimed in column 11. In column 12 i....