TaxTMI 
TaxTMI 
2020 (1) TMI 531
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....The Appellant followed the prescribed procedures and exported the goods through Nava Sheva Sea Port, Mumbai under customs supervision at the port and subsequently got exported vide the various shipping bills and accompanying ARE-1s. After export, the Appellant received full payment from its overseas buyer, M/s Red Square Trading, PO Box No. 15024, Dubai, UAE. The following facts are undisputed: (i) The fuctum of export by the Appellant. (ii) Payment of Central Excise duty at the Appellant's end. (iii) Realisation of export proceeds as regards the export goods in question. 2. A Show Cause Notice, dated 30.01.2012, was issued to the Appellant alleging that it had tried to claim excess duty rebate in respect of export goods, the purchase price of which was highly inflated by the manufacturer. It is also alleged that the manufacturer/supplier had followed the valuation of the export goods under Section 4A of the Act, whereas it ought to have been determined under Section 4 of the Act. The Show Cause Notice also invoked extended period of limitation and directed the Appellant to show cause as to why the amount of Rs. 80,67,801/- and Rs. 39,64,006/- totalling to Rs. 1,20,31,80....
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.... of Section 11A of the Act read with Rule 18 of the Rules. 4. Learned AR on behalf of the Department submits that the Appellant has exported the exported goods at very high price in order to get excess amount of rebate, which is legally not permissible. The adjudicating authority has, therefore, rightly discarded the price of the export goods, and sanctioned appropriate rebate as per record and value adopted by Commercial Tax Department. 5. We have considered the submissions made by learned Advocate on behalf of the Appellant and learned Departmental Representative on behalf of Revenue and also perused the appeal records. 6. The issue involved in this case is as to whether the Appellant has claimed any extra amount of rebate by over valuing their export product while exporting the same. The Appellant is merchant exporter, who has obtained the export goods from manufacturer/supplier at payment of duty as per the rate specified in ARE-1 and also in the excise invoice. It is the contention of the Department that the Appellant had manipulated the price of the exported goods by adopting higher assessable value in collusion with the supplier/ manufacturer. The Commissioner in his o....
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....ore Sixteen Lakh Eighty One Thousand Three Hundred Thirty Six only) and Education Cess & Secondary & Higher Educatin Cess rebate of Rs. 3,50,441/- (Rupees Three Lakh Fifty Thousand Four Hundred Forty One only) 21.3 It is on record that Ektara Export Pvt Ltd. had purchased Mouth Fresheners from the Manufacturing Unit of M/s Vishal Distributors during the period 2008-09 and 2009- 10 under 54 (Fifty four) numbers of ARE-1 for export and the duty amount of the said exported product was subsequently claimed as rebate of Central Excise Duty under Rule 18 of Central Excise Rules, 2002. 21.4 I also find from the statement of the authorisd representative of the Noticee No. 7 Shri Anupam Jha, the authorised representative of the said Noticee No. 7 had no knowledge how and where from M/s Vishal Distributors, the Noticee No. 4 had procured the raw material for manufacture of Mouth Freshener which was ultimately sold to the Noticee No. 7 as well as: 21.5 That the Noticee No. 7 had directly dealt with M/s Vishal Distributors and payment was made to them by Cheque and RTG. 21.6 That the Noticee No. 7 had no business interest with the Noticee No.1 and the Noticee No.2. However, the Not....
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....ommissioner that the price is not inflated. The manufacturer/supplier has determined the assessable value for the purpose of, payment of central excise at higher rate than the assessable value declared for the purpose of a payment of commercial tax, which is none of their concern. The exports were affected by the Appellant through the various shipping bills supported by ARE-1 and commercial invoices which were duly checked and verified by the Central Excise Officers and also the Custom Officer at the time of their export. The manufacturer/ supplier has sold the goods to the Appellant by adopting the value declared under Section 4A of the Act in terms of Notification No. 49/2008/CE (NT) dated 24.12.2008 issued under Section 4A of the Excise Act. The export value of the subject exported goods were not objected by the officers of the Department at the time of export. As the Appellant has procured the goods which were valued under Section 4A of the Act it, could not have taken any other value for the purpose of export. The Department contention that in case of export the valuation under Section 4A is not permitted without any legal basis under Central Excise Act and Rules. The Departme....
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....of duty'. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit [2000 (38) RLT 179]." 8. Counsel appearing for the Revenue could not assail any of the findings recorded by the Tribunal. 9. That being the position, we agree with the view taken by the Tribunal and find no merit in these appeals which are dismissed leaving the parties to bear their own costs. 9. We also find that Hon'ble Supreme Court in case of Om Overseas Limited vs. Union of India [2003 (156) ELT 167 (SC)] has held that if there is any short payment, the benefit of rebate cannot be denied unless and until the same is by reason of fraud, collusion or wilful statement or suppression of fact. It has been not been brought on record in the impugned order that the Appellant has committed any fraud while obtaining the export goods from their supplier on payment of Central Excise duty in terms of Section 4 A of the Act. In the said decision th....
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.... Court or of the order passed by Joint Secretary to the Government of India in the revision application. The appeal is accordingly allowed. It is held that the appellants will be entitled to rebate under the Notification. There will be no order as to costs." 10. Further we find that the Department has failed to produce any evidence regarding export price declared by the Appellant is at lower price than the contemporaneous export price. This aspect has been considered by Hon'ble Supreme Court in case of Commissioner of Customs vs. Crown International Limited 2015 (325) ELT 462, wherein it is held as under; Respondents are merchant exporters. They purchased CDROMs containing software from one manufacturer. Purchase price was Rs. 640/- per piece. Respondents had entered into a contract with foreign buyers for export of the CD ROMs at the rate of USD 18 per piece, which was equivalent to Rs. 761.40 at the prevailing exchange rate. Respondents realised the full export proceeds from the foreign buyers. 2. Based on the investigations, show cause notice was issued alleging that the value declared by respondents for export was inflated with a view to take the advantage of DEPB schem....