TaxTMI 
TaxTMI 
2014 (5) TMI 1093
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....3 -do- 4. MBI/JCH/CCE/29/Th-II/10-11 dated 4-6-2013 -do- 5. MBI/JCH/CCE/16/Th-II/09 dated 4-6-2013 -do- 6. MBI/JCH/CCE/20/Th-II/09 dated 4-6-2013 -do- 7. MBI/JCH/CCE/DD/41/Th-II/10-11 dated 7-6-2013 -do- 8. MBI/JCH/CCE/DD/42/Th-II/10-11 dated 7-6-2013 -do- 9. MBI/JCH/CCE/DD/07/Th-II/11-12 dated 7-6-2013 -do- 10. MBI/JCH/CCE/DD/45/Th-II/10-11 dated 7-6-2013 -do- 11. MBI/JCH/CCE/DD/34/Th-II/10-11 dated 7-6-2013 -do- 12. MBI/JCH/CCE/26/Th-II/10-11 dated 7-6-2013 -do- 13. MBI/JCH/CCE/23/Th-II/09 dated 7-6-2013 -do- 14. MBI/JCH/CCE/DD/43/Th-II/10-11 dated 7-6-2013 -do- 15. MBI/JCH/CCE/DD/01/Th-II/11-12 dated 13-6-2013 -do- 16. MBI/JCH/CCE/04/Th-II/11-12 dated 13-6-2013 -do- 17. MBI/JCH/CCE/05/Th-II/11-12 dated 13-6-2013 -do- 18. MBI/JCH/CCE/DD/02/Th-II/12-2013 dated 17-6-2013 -do- 19. MBI/JCH/CCE/01/Th-II/12-2013 dated 17-6-2013 -do- 20. MBI/JCH/CCE/DD/35/Th-II/10-11 dated 19-6-2013 -do- 21. MBI/JCH/CCE/36/Th-II/10-11 dated 19-6-2013 -do- 22. MBI/JCH/CCE/DD/05/Th-II/12-13 dated 2-7-2013 -do- 23. MBI/JCH/CCE/DD....
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....he labels as "A blend of premium malts and purest Indian Grain Spirits". This label is sufficient indication of the fact that grain based 'Ethyl Alcohol' was used in its production. (iv) Labels of this product 'Indica Royale' was subsequently changed to "A blend of premium malts and purest Indian Neutral Spirits", which is a clear indication of the fact that, Grain based 'Ethyl Alcohol' was used for manufacture of whisky for export purpose, otherwise there was no need to M/s. Deejay Distilleries, Powai to change/alter the labels after the exports. (v) There is no difference in the technical specification of Grain based 'Ethyl Alcohol' as compared to Molasses based 'Ethyl Alcohol'. This aspect would have helped M/s. Deejay Distilleries, Powai in exporting grain based whisky while maintaining that, it was molasses based, purely to get undue drawback benefit. (vi) Apart from 'Indica Royale' there are few more whisky brands which are exported. None of these products have any label claiming that they are manufactured using molasses based 'Ethyl Alcohol'. Hence, even these could have been made out of grain based '....
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....t the certificate does not contain the basis i.e. documents/records, on the basis of which the certificates were issued and that in absence of details of records/documents leading to conclusion that the certificates do not have evidential value. 2.4 Apart from the drawback claims covered in first round of revisionary proceedings as contained in case mentioned at Sl. No. (l) of table above, the respondent also filed some fresh applications for fixation of brand rate of drawback in respect of IMFL manufactured and exported them subsequently. These applications for fixation of drawback brand rate on the portion representing ENA/Ethyl Alcohol were rejected by the original authority vide Orders-in-Original/Letters mentioned at Sr. Nos. 2 to 28 of the table above. The original authority held that batch no. was not found on the export documents and also observed that jurisdictional central excise authorities in their verification report have heavily relied upon certificate issued by the state excise's inspector; that the certificate does not contain the basis i.e. documents/records, on the basis of which the certificates were issued and that in absence of details of records/docume....
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....or, the place of manufacture, the alcoholic percentage and the batch number of the potable liquor, the guaranteed fluid contents of each bottle or receptacle shall be clearly indicated in bold letters on the labels. All labels required to be used shall be submitted to the Commissioner for his approval before use." Taking into account all the strict conditions of Bombay Prohibition Act, 1949, the contention of M/s. Deejay Distilleries that the 'Grain based Ethyl Alcohol' was used only for domestic clearances and not for export purpose is not acceptable. Moreover, certain labels of exported product has sufficient indication of the fact the 'Grain based Ethyl Alcohol' was used in its production and the contention of M/s. Deejay Distilleries that it is just a marketing gimmick cannot be accepted. 4.4 The Commissioner (Appeals) has erred in relying on the certificate given by the lower authority of State Excise certifying that 'Grain based Ethyl Alcohol' was never used for exportation of goods, as the export consignments were never monitored/inspected by the State Excise Department. The State Excise officer has never produced any manufacturing date or details in respect of ingre....
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....le for fixation of Drawback and no relief to the 'Grain based Ethyl Alcohol' is available. 'Molasses based Ethyl Alcohol' is not proved by M/s. Deejay Distilleries and by the Commissioner (Appeals), while deciding the case. 5. A show cause notice was issued to the respondent under Section 129DD of the Customs Act, 1962 to file their counter reply. The respondent vide their letter dated 30-4-2014 & 7-5-2013 made the following submissions : 5.1 Department had objected that Commissioner has relied upon Purchase order of foreign buyer but not on the usage of Actual Ethyl Alcohol in the exported goods. The fact of actual use was verified from the manufacturing records maintained as per the Bombay Prohibition Act in Registers/Forms PL/VIII/VII/VI/I & II. As per the order of JS (Review) Government of India Para 12 the production and clearance of IMFL from Grain based is also verified from the above records. It is observed from the records that the IMFL manufactured from grain based alcohol is cleared for domestic consumption in India. While IMFL manufactured from Molasses based alcohol is exported as well as cleared for domestic consumption in India. 5.2 It is cont....
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....icularly Registers/Forms PL/VIII/VII/VI/I & II has been verified and it is observed that IMFL exported is manufactured from Molasses based Alcohol only. The above facts have already been discussed in Point 4.1 to 4.5. 5.6 It is contended by the department that the Molasses used for manufacturing Ethyl Alcohol for export of IMFL is not free from doubt. As per the above points the State Excise Statutory records particularly Register/Forms PL/VIII/VII/VI/I & II that IMFL exported is manufactured from Molasses based Alcohol only. 5.7 The department has contended that in the cases of Raigad and Goa Commissionerate referred by Commissioner of Appeals does not mention about procurement of Ethyl Alcohol whether Molasses or Grain based. As per State Excise Statutory records particularly Register/Forms PL/VIII/VII/VI/I and II that IMFL exported is manufactured from Molasses based alcohol only. The above facts have already been discussed in para 4.1 to 4.9. 5.8 It is contended by the department that exporter has not proved that molasses based ethyl alcohol is used for IMFL exported. As per State Excise Statutory records particularly Registers/Forms PL/VIII/VII/VI/I & I....
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....ermine whether the IMFL exported was manufactured out of molasses based Ethyl alcohol or grain based alcohol. It was also directed that while conducting the verification, the detailed data analysis done by Commissioner (Appeals) in his Order-in-Appeal dated 3-2-2010 was also to be kept in mind. The original authority in remands proceedings, vide Order-in-Original No. 12/AK/DBK/Th-II/2013, dated 14-2-2013, [Order-in-Original mentioned at Sr. No. (l) of the table] again rejected the application for brand rate fixation on the ground that batch no. was not found on the export documents, and the jurisdictional central excise authorities in their verification reports heavily relied upon certificate issued by the State excise's inspector; which does not contain the basis i.e. documents/records, on the basis of which the certificates were issued. Apart from drawback claims covered in first round of proceedings as contained in case mentioned at Sl. No. (l) of table above, the respondent also filed some fresh applications for fixation of brand rate of drawback in respect of IMFL manufactured by them. The fresh applications for fixation of drawback on the portion representing ENA/Ethyl Alcoho....
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....ied from PL VIII register going back for identifying the raw material by tracing Batch no. in PL VII/PL VI/PL V register under heading Material issued. In the PL IV register under the heading receipt PL I i.e. indent number is shown. From the indent number the type of alcohol purchased is verified. The Production is also verified from Batch card i.e. PL II. 2. One of the main objections while filing the appeal was that in one Brand i.e. Indian Royale Malt Whisky, on label a phrase "Blend of Premium Malts and Purest Indian Grain Spirits" was written. The department had raised objection that the said IMFL was manufactured from Grain based Alcohol. From the above list of batch wise production at Exhibit XXVIII a separate list of batches manufactured of brand Indian Royale is prepared, and it is verified from PL VIII/VII/VI/V/I & II from register. It is observed from the records all these batches are manufactured from Molasses based Alcohol. From the PL II form i.e. Batch Card it is observed that nearly 1% of Malt Spirit is added for flavour as explained in the first Para of the verification report. 17. It may, therefore, be ap....
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....stantive requirements for adoption of the rates prescribed under AIR, as provided in the Board's letter F. No. 609/55/2008-DVK dated 2-2-2009 are fully complied with." 11. Government notes that the Superintendent Central Excise has conducted detailed verification from all the relevant statutory records of the manufacturing unit apart from considering the certificate issued by State Excise authorities and then categorically stated that IMFL manufactured from grain based Ethyl Alcohol is cleared for domestic consumption in India while IMFL manufactured from Molasses based alcohol is exported as well as cleared for domestic consumption. It was further stated in the report that no IMFL of grain based alcohol is exported and only IMFL manufactured from Molasses based alcohol is exported. The said verification report clearly established that, IMFL manufactured from molasses based Ethyl Alcohol was only exported. This verification report is a valid evidence and original authority has not revealed any justified reason to reject the same. There was no issue of mentioning batch numbers in export documents when the brand rate fixation applications were rejected initially. The original....