TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 332
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Whether the Tribunal substantially erred in law in not considering the decision dated 07.01.1999 of Commissioner (Appeals) which, while remanding the matter, had required the adjudicating authority to ascertain certain facts as indicated in the said order dated 07.01.1999 (Pages 35 and 36 of the compilation)?" 3. The appellant is engaged in the business of manufacturing of Brass Rods and Sections falling under Chapter 74 of the Central Excise Tariff Act, 1985 [for short 'the Act'] and was also holder of Central Excise Registration No. AR-III/8/92 dated 30.06.1992. 3.1 A show-cause notice dated 19.10.1994 was issued demanding duty of Rs. 5,12,257/- issued by the Assistant Commissioner of Central Excise, Jamnagar, on the ground that the appellant did not file claim under Rule 57H of the Rules as the appellant was not entitled to avail the credit under Sub-rule 1(b) of Rule 57H of the Rules as the statement of stock of raw materials lying with the appellant was wrong as per clause (a) of sub-rule 1B of Rule 57H of the Rules and that in terms of clause (a) of sub-rule 1B of Rule 57H of the Rules, there was no evidence as to how the input have been used in the manufacture of final pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me but the same were covered by the High Sea Sale Agreement between the appellant the original importer. Therefore, in respect of the two Bills of Entry being No. 2088 and 7283 were covered by the show-cause notice, the consignment were imported by the third parties but there was High Sea Sale Agreement between the appellant and the original importer and there was no dispute that the consignment was received in factory and the denial of credit therefore was not proper and legal. 3.8 Whereas, on the other hand, it was the case of the Revenue that in respect of two Bills of Entry which covered the import by the appellant the matter may be decided on merits as the name of the appellant was duly reflected in both the Bills of Entry and as regards the imports covered by the other Bills of Entry which were claimed to have been procured on High Sea Sales Basis, the claim of the appellant was not brought out from the record as the Bills of Entry which were filed by the other persons and such documents were not endorsed in favour of the appellant hence, the same were not valid for the purpose of Cenvat credit. 3.9 The Tribunal, after considering the submissions of both the sides, held as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ory of the person who claims to have imported on High Sea Sales basis. It was therefore submitted that the Tribunal could not have rejected the claim of the petitioner for Cenvat credit only on the ground that the name of the appellant was not reflected in the Bill of entry. 5. On the other hand, learned Senior Standing Counsel Mr. Ankit Shah for the respondent submitted that the appellate authority has considered in detail the aspect of filing of Bill of entry by the importer when the matter was remanded back to reconsider the issue of granting of Cenvat credit on the import made by the appellant on High Sea Sales basis. 6. Learned advocate Mr. Shah invited the attention of ht Court to the findings of the appellate authority in this regard which reads as under: "In respect of SCN No.AR/III/Mukund/SCN/94 dated 03.01.1995 amounting to Rs.294191.20, the noticee had availed the benefit of MODVAT credit of duty on inputs in the month of August-94 and September-94 on the basis of bills issued by two importers viz. M/s. Marvel Udyog, Jamnagar and M/s. Prakash Impex, Jamnagar were not in accordance with the procedure as prescribed under Notification No. 32/94-CE(NT) and 33/94/(NT) bot....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... credit has been availed of by him or that the has not applied for refund or he will not be applying for refund or countervailing duty before the Customs Department; such an endorsement should constitute valid evidence in the hand of manufacturer who has purchased such goods from such an importer. In this case there is no endorsement on the bill of entry as well as no declaration available in their Bill of Entries. It is seen that entire consignment was sold by the Importer to the Noticee. They should have endorsed the Bill of Entry in favour of Noticee and should certify on the bill of Entry that he has not taken any credit of duty in respect of the goods covered by Bill of entries in respect of full consignment. This office had conducted an inquiry with the Customs Kandla which revealed that the aforesaid two importers who cleared the goods for home consumption have not made high seas sales agreement to the noticee for the consignment covered under the aforesaid two Bills of Entries Also on inquiry with the importer M/s. Marvel Udyog, Jamnagar and M/s. Prakash Impex, Jamnagar reveals that Bills of Entries were filed by them because the sale agreement was not accepted by the Cus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....held that the Noticee is not entitled to the benefit of Rule 57H because the statutory, requirements have not been complied with. The point of high seas sale was raised only during the course of Personal hearing. The same was not discussed anywhere in the defence submission. This point is an after thought just to achieve a goal to justify the admissibility of their claim under Rule 57H. In fact no high seas sale is transacted in the case. Causal of photocopies of Bill of entry reveals that the importer are other than the Noticee and no endorsement regarding High Seas Sale embodied on the body of the Bill of Entry." 6.1 Referring to the above findings, it was submitted that the appellate authority and the Tribunal considering the facts of the case have rightly not granted the benefit of Cenvat Credit to the appellant on the three Bills of Entry where name of the appellant was not reflected as the same were not found to be in order. 7. We have considered the rival submissions of both the sides and also perused the orders passed by the Appellate Authority and the Tribunal. The Appellate Authority, after considering the facts of the case, has held as under: "[IX] Now I proceed to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the above goods are being delivered to the buyer on HIGH SEAS SALES BASIS" In terms of the above conditions in the Agreement any High sea sales transaction involves relinquishing the title of the goods by endorsing the Bill of Lading in favour of the buyer. The second important condition for the High sea sales transaction that, it is the buyer i.e. appellant shall arrange for clearance of the goods from Customs authority and payment of appropriate Customs duties and other charges including clearance from Port Trust's charges, demurrage charges, clearing charges etc. The buyer should process the B/E and pay the duties and dues directly to the customs and port trust / CHA etc. Whereas in the present case none of the above conditions appears to have been met by the appellant. The undersigned perused the original triplicate copy of Bills of Entries B/E No. 006795 & 006553 and noticed that the B/E's were originally filed by the importers on arrival of the vessel and the same were assessed by the customs for clearance for home consumption. Further on perusal of the original TR-6 challans dated 11.08.1994 and 19.09.1994 in respect of M/s. Marvel Udhyog, Jamnagar and M/s. Prakas....