TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 910
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....ppellant is located was falling under the rural area so as to be eligible and justified in adopting the procedure and seeking exemption. The said order was perceived to be containing error and hence the appellant preferred Rectification of Mistake Application, interalia, bringing it to the notice of the Tribunal that the Tribunal in terms observed that the order-in-original could not be sustained, and when the factum of actual export was not disputed in any manner, the remand order was erroneous and requires to be rectified. The said application came to be rejected vide order dated 29.4.2016 which gave rise to filing of Special Civil Application. 2. This Court on 31.8.2016 passed the order in Tax Appeal No. 676 of 2016 which is required to be reproduced as under: "Learned advocate appearing for the appellant has submitted that as the order in question touches upon the jurisdiction aspect and as could be seen from the observations in para-7, the order of admission was wholly uncalled for and hence, the writ petition on the subject matter being Special Civil Application No. 10899 of 2016 is filed and is listed today after the notice is duly served upon the concerned. However, as t....
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....e for export of excisable goods as specified in Notification No. 42/2002-CE(NT) dated 26.6.2001 under Rule 18 and 19(2) of the Central Excise Rules, 2002 in light of Board Circular No. 947/08/2011 dated 21.6.2011 and Circular No.705/21/2003-CX dated 08.04.2003, extending the simplified procedure in respect of exports of readymade garments. The adjudicating authority denied the benefit of Simplified Export Procedures on the ground that the appellants are not entitled to SSI exemption under Notification No.8/2003-CE dated 01.03.2003, in view of the Para 4 of the notification and the appellants are manufacturing readymade garments and affixing brand name of buyers. Consequently, holding that the duty is leviable on th said goods, he confirmed the demand of duty with interest and imposed penalty and redemption fine as stated above. 5. Learned counsel appearing of the appellant invited the court's attention to the observations of the Tribunal in the order dated 13.10.2015 recorded in para 6, 7 and 8, and submitted that the Tribunal came to the conclusion qua nonsustainability of the order-in-original dated 27.2.2014 passed by the respondent authority, it unfortunately chose to remand t....
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....ing duty with penalty against the appellants cannot be sustained and is set aside. The stay application as well as the appeal of the appellants, stand disposed of with consequential relief, if any, as per law." 5.2 These observations ought to have been appropriately appreciated by the Tribunal and the Tribunal ought to have quashed and set aside the order without any further remanding the matter as the judgment and order of the Coordinate Bench are being conceded and to be binding upon the Tribunal. 5.3 In support of the aforesaid submissions, the learned counsel for the appellant has relied upon the following decisions: (1) SRD NUTRIENTS PVT. LTD. v. COMMISSIONER OF CENTRAL EXCISE, GUWAHATI [2017(355) E.L.T. 481(S.C.)]. (2) HONDA SIEL POWER PRODUCTS LTD. v. COMMISSIONER OF INCOME TAX, DELHI [2008(221) E.L.T. 11(S.C.)] 5.4 Learned counsel for the appellant further contended that the entire controversy even as per the order-in-original was on account of erroneous notion on the part of the authorities that the petitioner was required to follow the procedure as prescribed which is known as ARE-1 as prescribed under Notification No. 42/01 dated 26.6.2001 and this was not appl....
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....he exempted units. However, since the readymade garment manufacturers are primarily exporting almost all of their production and the clearances of rejects and waste to home consumption is minimal, it shall be in the interest of the exports to extend the Simplified Export Procedure to readymade garments sector. Accordingly, Board has decided to extend the Simplified Export Procedure to readymade garments sector (not to other sectors) by making the procedure applicable to such units which are primarily exporting and the clearances of waste and rejects for home consumption on payment of duty does not exceed 5% of their export turnover during the year. 4. As regards Registration of the said units, Board has decided that penal action on account of clearances of such units for home consumption on payment of duty pending grant of registration may not be initiated for the time being and in the intervening period formalities like declaration of stocks and record keeping, etc may not be subjected to mandatory requirements. In this regard reference may also be made to Board's Circular 703/19/2003-CX., dated 25th March, 2003, (F.No. B3/1/2003-TRU) [2003 (153) E.L.T. 21]. While allowing this....
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.... the orders impugned and therefore the orders impugned are erroneous and required to be quashed and set aside. The aspect of the petitioner's factory falling in a rural area is in fact now under gray area inasmuch as, in the proceedings of Special Civil Application, this Court on 30.8.2018 passed the order whereunder the concerned authority was called upon to indicate in unequivocal terms the location of the petitioner's factory. The said order is required to be reproduced as under: "Heard learned counsels for the parties. Leave to join District Collector, Navsari as party respondent. Issue fresh notice to newly joined respondent returnable on 04.10.2018. The above notice is issued to the newly joined party for the limited purpose of verification of certificate date 28.03.2014 issued by the Resident Additional Collector, Navsari and the concerned officer to remain present along with file or to file a short affidavit in this regard. Direct service is permitted." 5.7 Pursuant to the aforesaid order, the Mamlatdar has placed on record by way of affidavit which reads as under: "I, Sukhdevbhai Dubalbhai Chaudhary, Aged 52 years, as a Mamlatdar, Ta: Gandevi, Dist: Navsari, on....
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....herefore the orders impugned may not be interfered with by this court. 6.2 Learned counsel for the respondents submitted that the observations made by the Tribunal while rejecting the rectification application also indicated that the observations qua actual export cannot be said to be an actual observation such as to classify the authority and therefore this court may not exercise the jurisdiction to interfere with the same. 6.3 Learned counsel for the respondents further submitted that when the procedure prescribed is not followed, the petitioner or the manufacturer would not be eligible for any exemption as sought to be canvassed by the learned counsel for the petitioner. 7. We have heard the learned counsel for the parties and also perused the papers. The following undisputed aspect is required to be considered. 1. The factum of actual export cannot be said to be an aspect in dispute at all as sought to be canvassed by the learned counsel for the respondents. The plain and simple reading not only of the order impugned in the appeal proceedings dated 13.10.2015 but the order passed in rectification of mistake application dated 29.4.2016 would also clearly indicate that the T....