TaxTMI 
TaxTMI 
2023 (6) TMI 950
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2. On behalf of the appellant, Ld. Counsel Ms. Mane Vera Niveditha appeared and argued the matter. It is explained by the Counsel that the appellant has not crossed the threshold limit during the disputed period. Department has failed to consider the export clearances made by the appellant through the merchant exporter. Value of such export clearances made through merchant exporters against Form-H was included by the department to allege that the appellant has exceeded the threshold limit of the notification. Ld. Counsel adverted to Circular No.648/30/2002 dated 25.07.2002 and submitted that the Board has clarified that when exports are made through merchant exporters against Form-H, the same has to be taken into consideration for the benefit of SSI exemption. It is submitted by the Ld. Counsel that the issue stands covered by the decision of the Tribunal in the case of Vadapalani Press Vs CCE Chennai - 2007 (217) ELT 248 (Tri.-Chennai) and Ramani Plastics Pvt. Ltd. Vs CCE Chennai - 2015 (317) ELT 343 (Tri.-Chennai). 3. Ld. A.R Sri R. Rajaraman appeared for department and supported the findings in the impugned order. 4. Heard both sides. 5. The show cause notice has been issue....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ish that the goods have been exported the value of such clearances would not be included in the aggregate value so as to deny the SSI exemption. Relevant para reads as under : "6. In Circular No. 212/96-CX., dated 20-5-1996, the Board simplified the export procedure for SSI units. Where the export of goods cleared from SSI unit was effected through a merchant-exporter, the certificate in "Form-H" issued by the latter was accepted as proof of export and it was provided that, in case clearances from SSI unit for home consumption plus clearance for export, where proof of export was not furnished within 6 months, exceeded exemption limit, they should take Central Excise registration and follow the regular A.R. 4/A.R. 5 procedure. Where proof of export was furnished within 6 months, the clearances made for export were not to be added to clearances for home consumption. Circular No. 648/39/2002-CX. 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, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther evidence already on record, consider the party's submissions and record fresh findings on the surviving issues." 7. The Hon'ble Gujarat High Court in the case of CCE Vs Amar Packaging Industries - 2016 (344) ELT 187 (Guj.) held as under : "5.2 The case of the department is based on the above circular and it is contended that conditions prescribed therein were not met with. It is clear that 'H' form is not dispensed with as a document of proof of export. The acceptance of 'H' form to prove and establish that the export has taken place is only clarified in the above circular. This facility will be available for the purpose of exemption in respect of exempted unit which undertake exports themselves or through merchant exporters directly. 5.3 It is an admitted position that the merchant exporters having issued 'H' forms to the assessee, the proof of export is established in terms of requirement of above circular. It cannot be said that the condition of export has not been satisfied. The cartons were sent to exporters for export and which were the necessary part of the goods which were imported by the merchant exporters. By first concluding that there was no export as the cond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 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 by the above mentioned units. The corroborative documents for export of hangers along with garments has been provided in the form of Form H in respect of all the units except unit mentioned under serial No. 1 above. The Form H or ST-XXII Form or any other equivalent sales tax form of the Sales Tax Department could be accepted as a proof of export provided the goods have been exported directly from the factory of manufacture as clarified by Board vide Circular No. 648/39/2002-CX, dated 25-7-2002 issued from file F. No. 209/11A/2002-CX.6 which was incidentally issued for clarifying....