TaxTMI 
TaxTMI 
2016 (12) TMI 84
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....common order. 2. The relevant facts that arise for consideration, after filtering out unnecessary details, are the appellants herein procured DEEC licence from original licensees, thereafter imported the goods by claiming the benefit of Notification 203/92. Department issued show cause notices to them to produce evidence to show that they had not availed input stage credit under Rule 56A or 57A of the erstwhile Central Excise Rules, 1944 in terms of para (v) of the notification. In the absence of any such evidence, the adjudicating authority confirmed the demands raised and the appeals before the Commissioner (Appeals) also met with the same fate. 3. Learned counsel for the appellants would draw our attention to the findings recorded ....
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....submit that the Hon'ble High Court of Orissa in the case of Raj Exports vs. National Aluminium Co. Ltd. 1996 (87) ELT 349 (Ori.), has held that modvat credit having been availed on the inputs is violation of the condition of Notification 203/92 and reversal of credit will not restore the breach of condition of exemption notification; and submit that the same has been upheld by the apex court as reported at 2002 (141) ELT A282 (SC). It is his further submission that the Hon'ble High Court of Bombay in the case of Rico Gems Corporation vs. Chief Controller of Imports & Exports 1992 (58) ELT 390 (Bom.), has held that the licence holder has vested right is untenable, as the conditions of notification are not satisfied, the question of exercisin....
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....ble by the concerned authorities. The authorities in these appeals have issued a cyclostyled show cause notice to the appellants directing them to produce evidence, that exporter having not availed the cenvat credit on the inputs under the provisions of Rule 56A and/or 57A of the erstwhile Central Excise Rules, 1944. In our considered view, the appellants and importers herein cannot be called upon to produce evidence in respect of an act to be done by exporter and original licence holder. We find that the Hon'ble Supreme Court in the case of Hico Enterprises (supra) held as under:- "2. Challenge in this appeal is to the order passed, by Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (in short CESTAT ) al....
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....department cannot compel the appellants importer, who are the transferee, to once again prove that the export obligation has been fulfilled by the original licence-holder in accordance with the notification and without availing input stage credit." "The transferee cannot be called upon to fulfill the condition (v)(a) of the Notification No. 203/92-Cus. It is the original licencee, who has to satisfy the above referred condition, but not the transferee of the licence. In the result, the reference is answered accordingly." 6. In this appeal challenge is to the aforesaid conclusions. Learned counsel for the respondent pointed out that no role was ascribed to it in the show cause notice. 7. It is seen that in view of ....