TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 462
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....ubsection (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts capital goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985, when cleared against a 'Status Holder Incentive Scheme' duty credit scrip issued to a 'Status Holder' by the Regional Authority in accordance with paragraph 3.16 of the Foreign Trade Policy. The exemption is subject to certain condition mentioned in the notification. The issue in these appeals being common and also being by the same parties, the appeals are taken up together for disposal, alongwith the cross objections. 3. The brief facts are that the appellant is a registered manufacturer engaged in manufacture of D.R Gin Machine, Cotton Bailing Press, Automation Accessories & Spares falling under Chapter Sub-heading No.84451910 and also in chapter 40 and 850 The appellant filed refund claim for an amount of Rs. 28,67,431/- pertaining to....
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.... condition under proviso (e) of para 7 of the notification. Hence, there is no restriction on the said capital goods for transfer of ownership by M/s Raghuvir. Hence, it was held by the Assistant Commissioner that the clearances of capital goods by the appellant to M/s Raghuvir without observing the conditions of the notification, cannot be treated as failure or technical lapses. 4. On similar facts in the other Appeal No.E/86192/15 wherein the buyer of the goods is M/s Banshi Cotton Private Ltd, Rajkot (hereinafter referred to as 'M/s Banshi' for short), wherein the appellant had applied refund claim for an amount of Rs. 26,70,289/ and the claim was rejected on similar facts and findings by the Assistant Commissioner. 5. Being aggrieved the appellant filed appeals before the learned Commissioner (Appeals) who have been pleased to record the following findings: "6.1 I find that the main issue to be decided in this case is whether refund of central excise duty paid by the appellant while clearing the subject goods to M/s Banshi on duty paid invoices is admissible to the appellant, as claimed by the appellant, the duty on the said goods has already been paid by M/s Banshi by way o....
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....ceived as normal clearances. 6.5 Apart from the above observations, the lower authority has not pointed out to any other defects in the instant claim. So, I straightaway proceed to decide the question whether the subject goods which have been cleared by the appellant on payment of duty are infact pertaining to the payment of duty made by debiting the SHI scrip and whether as claimed by the appellant and denied by revenue, is there any double taxation in the instant case. 6.6 In this regard, I have gone through the concerned documents produced by the appellant before me which has also been produced by the appellant before the lower authority. 6.7 Firstly, I find that the SHI scrip has been debited on 14/08/2013 by the concerned customs authority against proforma invoice dt 20/07/2013 issued by the appellant for the subject goods. The said debit has been made by the customs officer under notification No.33/2012-CE, at. 09/07/2013. The customs officer has issued a letter dt 14/08/2013 to the Assistant Commissioner, Central Excise Division - Amravati to this effect. Due to some mistakes, the said SHI scrip in original, the duly endorsed proforma invoice dt. 20/07/2013 and the lette....
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....es which was the only bonafide option available to him under such circumstances. It would be unfair to disallow the substantial benefit of the notification to the appellant for a procedural error i.e. inability to produce duty paid Scrip at the time of clearance of goods. If the facts of the transaction are clearly verifiable from the documents available, then there is no need to deny the substantial benefit to the appellant. 6.9 The Supreme Court judgment quoted by the lower authority in the impugned order CCE, New Delhi Vs M/s Hari Chand copal reported in 2010 (260) ELT 3 (S. C.) (para 22 and 23) is clearly going in favour of the appellant as the eligibility criteria of the notification, if given a strict meaning, goes in favour of the appellant and the exemption and conditional criteria, if construed liberally, also goes in favour of the appellant. 6.10 Further, the judgment of M/s Surabhi Inds Vs CCE reported in 2007 (208) ELT- 578 (AAR) quoted by the lower authority in the impugned order does not apply to the facts of the instant case as in the said ruling, the Tribunal was deciding a situation wherein provisions of a different exemption notification issued under other statu....
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....Excise Rules, 2002, wherein duty was shown as payable in terms of Rule 8 and also the duty was paid. The learned Commissioner (Appeals) have overlooked even the hard facts admitted by the respondent in appeal itself wherein they have stated - "the appellant then launched a massive search for the documents and ultimately traced the same to the sales personnel, who confessed to have received the documents long back but pleaded ignorance about the further use of the same." Thus the Order-in-Appeal appears to have been passed without appreciation of the actual facts and under the presumption that the duty on the said goods had already been paid by the buyer by way of debiting the SHI scrip as per provisions contained in Notification No.33/2012-CE, which is not correct. The fact is that the goods were cleared after proper assessment of duty payable and duty was discharged by the respondent. Later on by way of refusal of reimbursement by the buyer, the respondent or for any other reason refund of duty cannot be sanctioned especially when there had been non-fulfilment of substantial conditions of the Notification. The Notification requires a number of conditions be satisfied both prior to....