TaxTMI 
TaxTMI 
2017 (7) TMI 448
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....pellant claimed that against the supplies made to merchant exporter, the merchant exporter issued Form 14B and/or Form H. In addition to that the appellant also submitted export documents of merchant exporter claiming that the goods cleared by the appellant have been exported by the merchant exporter. The adjudicating authority did not accept both the contention of the appellant on the ground that as regard supplies made against Form 14B and/or Form H is permissible only when the goods are exported directly from the manufacturer. In the present case, the goods were sold to merchant exporter and have not directly exported. As regards other proof of export provided by the merchant exporter, the adjudicating authority contended that the proforma invoice issued by the merchant exporter is of pre-dated than the date of clearance of goods by the appellant, therefore, whatsoever export documents submitted are not relevant to the clearances made by the appellant. Accordingly, the said clearance was not considered for the purpose of export. Consequently, demand of duty, interest and penalties were confirmed. Therefore, the appellant filed the present appeal. 2. Shri D.H. Nadkarni, learned ....
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....s of appellant and export of the same goods by the merchant exporter. He further submits that the merchant exporter namely, M/s Bhalaria Steel Corporation has also given certificate that the goods supplied by the appellant to them during the period April, 2002 to February, 2003 were physically exported by them and in respect of the same Sales Tax exemption Form 14B along with copies of Bill of Lading were submitted to the appellant. The similar certificate was also provided by other merchant exporters. This also proves that the goods cleared by the appellant were indeed exported. In support of his submissions, he placed reliance on the following judgments: - (a) Ramani Plastics Pvt. Ltd. - 2015 (317) ELT 343 (Tri) (b) Hare Krishna Boxes Pvt. Ltd. - 2011 (267) ELT 525 (Tri) (c) Benara Bearings Pvt. Ltd. - 1999 (105) ELT 398 (Tri) (d) Merry Vs. CCE, Mumbai-II - 2008 (226) ELT 422 (Tri) (e) Amar Packaging Industries - 2009 (247) ELT 574 (Tri) (f) Universal Packaging - 2011 (264) ELT 147 (Tri) (g) Vadapalani Press - 2007 (217) ELT 248 (Tri) 3. Shri V.K. Agarwal, learned Addl. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He ....
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.... It is clarified that this facility is available only in respect of the exempted units which undertake exports themselves or through merchant exporters directly from the unit itself. The facility is not available for the supplies made to any other domestic manufacturer who may or may not export its finished products." From the reading of the above Circular, it is seen that the above procedure is primarily applicable in respect of small scale exempted units to export their goods either directly or through merchant exporter and documents prescribed by Sales Tax Department is Form H or ST-XXII Form or any other equivalent Sales Tax Form is acceptable as proof of export. The adjudicating authority interpreted the Circular in a manner that the goods should be supplied directly from the unit itself. As per the facts of the present case, we find that the goods were directly supplied by the appellant manufacturer from their factory to the merchant exporter and the merchant exporter in turn exported the goods. Therefore, in our considered view, the condition of the Circular that export should be through merchant exporters or directly from the unit itself stand fulfilled. Whenever the manuf....
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....Sales Tax forms have been considered by Board as proof of export, no further documents are required for the purpose of proof of export. 5. The very same issue has been considered in the various judgments as cited by the learned Counsel. In the case of Ramani Plastics Pvt. Ltd. (supra), a co-ordinate Bench of this Tribunal has decided the issue as under: - 4. We find that in appeal No.E/160/2005, the adjudicating authority, after considering the Boards circular, dated 25-7-2002, and Sales Tax H-Form or ST-XXII Form and the Chartered Accountants certificate dropped the proceedings. The relevant portion of findings of the adjudicating authority in OIO, dated 27-7-2004 is reproduced below :- "In this case, the assessee has cleared plastic hangers to the following units under Form H except Serial No.1 1. M/s. Network Clothing Company (P) Ltd., Tirupur 2. M/s. Amstrong Knitting Mills, Tirupur 3. M/s. C.S. Garments, Tirupur 4. M/s. Stanfab Apparels, Chennai 5. M/s. R.R. Leather Products Pvt. Ltd., Chennai etc. 6. M/s. BNT Innovations, Tirupur 7. M/s. Gomathi International, Tirupur 8. M/s. Fulchand & Sons, Mumbai. These hangers have been exported along with garments b....
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....port its finished products. In the present case, it is observed from the record that the merchant exporter exported the goods which was not disputed at any point of time. 8. In view of the above discussion, in Appeal No.E/1091/2005, we set aside the impugned orders and the appeal is allowed. In Appeal No. C/160/2005, the impugned order passed by the Commissioner (Appeals) is set aside and the adjudication order is restored. Both the appeals are allowed. 5.1 In the case of Hare Krishna Boxes Pvt. Ltd. (supra), this Tribunal considered an identical matter as under: - 4. We have given careful consideration to the submissions. Essential facts of the case are not in dispute. The assessee was operating, during the period of dispute, as an unregistered declarant unit as permitted by the law then in force. They availed SSI benefit under the relevant notifications and hence did not pay duty of excise on the corrugated boxes (specified goods) cleared for home consumption in the domestic market. During those periods, SSI units with the aggregate value of clearances below 1 crore/1.50 crores were entitled to avail full exemption under the relevant SSI notifications. In determining the aggre....
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....f using sales tax forms under the Central Sales Tax Rules as a proof of export in the context of excluding the clearances for export from computation of the aggregate value of clearances of excisable goods for home consumption was not admissible to assessee. The very clarification of the Board was construed by this Tribunal in the case of Vadapalani Press (supra). The relevant provisions of the Central Sales Tax Rules were also examined in that context. The view taken by the Tribunal in the said case was that a manufacturer of packing material claiming SSI benefit in respect of clearances thereof for home consumption was entitled to use H-Form as a proof of export in respect of the materials cleared to merchant-exporters for being used for packing other goods for export, in the context of claiming exclusion of such clearance from computation of aggregate value of clearances of specified goods for home consumption under the relevant SSI notification. It is pertinent to note that the interpretation rendered by the Tribunal in respect of the CBECs instructions has not so far been challenged by the Revenue. It has, therefore, to be presumed that the interpretation given in the case of ....
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....ts which undertake exports themselves or through merchant exporters directly from the unit itself. The facility is not available for the supplies made to any other domestic manufacturer who may or may not export its finished products." The clarification in the italicized sentences of para 4.1.2 were taken from the Boards circular dated 25-7-2002 ibid and ld. SDR has laid emphasis on the same and has argued that a Form-H certificate would not be accepted as proof of merchant-exporter directly from the SSI unit itself In this case, it was pointed out by SDR, the exports were made by the appellantsbuyers from the latters premises and not from the formers and, therefore, the appellants would not be entitled to employ the Form-H certificates as proof of export of the cartons supplied to their buyers. We are not inclined to accept this contention inasmuch as the Boards clarification as to the manner of exportation has to be understood conjointly with the relevant provisions of the Central Sales Tax (Registration and Turnover) Rules, 1957. Rule 10(a) of the CST (R&T) Rules, 1957 reads as under : "A dealer may, in support of his claim that he is not liable to pay tax under this Act in ....
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....d by learned counsel that all the "Form-H" certificates produced by the appellants had indicated that the goods covered therein were used by the buyers in the packing of goods exported by them. The details regarding exports which were required to be mentioned in the Schedule to each certificate were furnished in a tabular statement annexed to the document. Such a document was liable to be accepted as proof of export by the appellants' customer, of the cartons supplied by the appellants. It would not cease to be proof of export by mere reason of the fact that the exportation was done by the customer from his own premises and not directly from the appellants' factory. Therefore, we are of the view that the interpretation given by learned SDR to the Boards Circular No. 648/39/2002 would not be consistent with the provisions of law governing issuance of "Form-H" certificate. It is not the case of the Revenue that the cartons supplied by the appellants to A.V. Thomas Co. and other similar customers were not exported. It is, however, pointed out that the cartons were not exported as such, but were only used as packing material for goods exported by the customers. We find that, in....
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....SSI unit for packing of other goods for export. This circular deals with Form-H procedure as applicable to SSI unit selling goods to a merchant-exporter. This would mean that it is open to the merchant-exporter to use packing materials supplied by the SSI unit for packing his own goods for export. By this activity, he does not turn manufacturer-exporter. In other words, M/s. A.V. Thomas Co. and other customers of the appellants who used the printed cartons supplied by the appellants for packing their own goods for export cannot be called manufacturer-exporters insofar as the cartons are concerned. They can only be called merchant- exporters of the cartons. Thus both the conditions proposed by learned SDR were satisfied by the appellants. Hence, by ld. SDRs yardstick also, the appellants must be held to have established their case for acceptance of Form-H certificates as proof of export in respect of the "printed carton" ssupplied by them to M/s. A.V. Thomas Co. and other similar customers during the period of dispute. It is ordered accordingly. 5. Having found striking parallel between this case and the case of Vadapalani Press and other similar cases cited by the learned counsel,....
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....of the intended purpose. In the instant case, it has never been the argument of the learned Jt. CDR that the corrugated boxes which were excluded from the computation of aggregate value of clearances were not ultimately exported. The only case of the Revenue appears to be that the sales tax forms produced by the assessee did not adequately prove the factum of export. In other words, there is no proper correlation between the exports made by the merchant-exporters and the clearances made by the assessee. According to the learned Jt. CDR, had the goods been directly exported from the assessees factory, no such correlation would have been called for. These arguments are specious. The fact remains that the procedure was simplified by the Board in para 4.1.2 of Chapter 7 of the Central Excise Manual of Instructions and that the procedure so simplified stands interpreted and applied by this Tribunal in the case of Vadapalani Press (supra) and similar other cases and further that this interpretation has never been called in question. Hence the Boards instructions as interpreted by this Tribunal have got to be given effect to. We have found the present case to be an appropriate case for gi....
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.... considered the submissions made by both the sides. There is no dispute that carton boxes supplied by the appellants to the merchant exporters have been used for packing export goods which is also on record that appellants have produced Form-H as well as the relevant enclosures which show that goods have been exported and cartons supplied by them have been used for that purpose. Further we also note that the Tribunal in the case of Vadapalani Press had discussed the Circular issued by the Board from time to time in detail. We find ourselves in respectful agreement with the reason adopted by the Tribunal in Vadapalani Press case in coming to the conclusion in favour of the appellants in that case and accordingly we allow the appeal filed by the appellants with consequential relief. 5.5 In the case of Universal Packaging (supra), a Division Bench of this Tribunal observed as under: - 5. After considering the submissions, we are convinced that the appellants have made out a good case against the Commissioners decision. The case of the Revenue is mainly that, as the cartons which were cleared for export did not satisfy Rule 19(1), the clearance should be counted as a clearance for h....
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....erchant-exporters in turn have to account all these serially numbered forms to the Sales Tax Department by furnishing a proof that the goods have been exported out. These proofs are in the form of presentation of the Shipping Bill duly completed by the customs, bill of lading, foreign exchange remittance certificates etc. The liability of the manufacturers to the Central Sales Tax gets discharged only when they submit these forms to the Sales Tax Department. It is, therefore, seen that indirectly exports get accounted for through the issue of H-form or ST-XXII Form. Thus, photocopy of H-form or ST-XXII Form or any other equivalent Sales Tax form duly attested and stamped by the manufacturer or his authorised agent will be accepted for purpose of proof of export. It is clarified that this facility is available only in respect of the exempted units which undertake exports themselves or through merchant exporters directly from the unit itself. The facility is not available for the supplies made to any other domestic manufacturer who may or may not export its finished products." The clarification in the italicized sentences of para 4.1.2 were taken from the Boards circular dated 25-7....
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....rt (in the form of Form-H certificate) from their customer We have perused a specimen 'Form-H' certificate issued by M/s. A.V. Thomas Co. to the appellants. This document (No. 107 dated 3-1-2005) certified as under :- "Certified that the goods the Particulars whereof have been specified in items (1) and (2) of the Schedule below supplied in pursuance of my/our Purchase Order No. (ANNEXURE ENCLOSED) Purchased from you as per bill/cash memo/Challan No. (ANNEXURE ENCLOSED) dated (ANNEXURE ENCLOSED) for Rs. 88,64,004.15 have been utilized by me/us in the packing of the goods exported by me/us outside the territory of India, as per the details given in item (3) to (6) of the said schedule." The Schedule to the above certificate described the goods as "boxes/packing materials" and also provided export details including the particulars of the relevant Air Waybills in proof of export of goods across the Indian customs frontiers. It was submitted by learned counsel that all the Form-Hcertificates produced by the appellants had indicated that the goods covered therein were used by the buyers in the packing of goods exported by them. The details regarding exports which were requir....
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....arances for home consumption. Circular No. 648/39/2002-CX. [reported in 2002 (51) RLT M48] affirmed the position and further clarified that the above facility was available only in respect of exempted units which undertook exports themselves or through merchant-exporters. Ld. SDR argued that, for the above benefit, the SSI unit must be an exempted unit, i.e. unregistered unit, and the export must be made either directly or through merchant-exporter. Neither of the Notifications speaks of registration of SSI unit. In the SSI scheme, a manufacturing unit is said to be exempted unit for a given financial year if it has enjoyed SSI exemption in the previous year. If, by excluding the clearances made by such a unit for export from the computation of aggregate value of clearances in a given financial year, it is within exemption limits, it is an exempted unit. In this sense, the appellants remained an exempted unit, thereby satisfying the first condition proposed by SDR. Circular No. 648/39/2002-CX. specifically refers to goods manufactured and cleared by SSI unit for packing of other goods for export. This circular deals with Form-H procedure as applicable to SSI unit selling goods to a....