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2017 (3) TMI 777 - AT - Central ExciseDutiability - H.D.P.E. Bags which were procured duty free - benefit of N/N. 43/2001-CE(NT) dated 26.06.2001 - demand on the ground that appellant had not fulfilled the conditions of notification as appellant could not produce any proof of export by usage of these HDPE bags - Held that - the appellant had not indicated in the invoices prepared by them for the clearance of soyabean de-oiled cakes that the said soyabean de-oiled cakes were packed in HDPE bags. In the absence of any evidence to show that they had cleared the export consignment of soyabean de-oiled cakes in HDPE bags, we find that there is no case for the appellant. As regards the claim of learned Counsel that the submission of H Form by merchant exporters as a proof of export of the goods cleared, we have no doubt in our mind that H Form is one of the conclusive evidence to indicate that the goods are exported but in the case in hand the H Form does not indicate any connection between the goods cleared for export and the goods exported as also the documents of clearances from the appellant s factory do not indicate that soyabean de-oiled cakes was in fact packed in HDPE bags. The appellant is not able to convince us that the goods cleared by them for export, were packed in HDPE bags which were procured duty free by claiming benefit of N/N. 43/2001-CE (NT) dated 26.06.2001 - appeal dismissed - decided against appellant.
Issues: Demand of duty on H.D.P.E. Bags procured duty free for export, sufficiency of evidence for export, applicability of Notification 43/2001-CE(NT), interpretation of 'H' Form as proof of export.
Analysis: 1. Demand of Duty on H.D.P.E. Bags: The case revolved around the demand of duty on H.D.P.E. Bags procured duty free by the appellant for export purposes. The appellant claimed the benefit of Notification 43/2001-CE(NT) dated 26.06.2001. The show-cause notices were issued due to the lack of proof of export by using the HDPE bags. Both the adjudicating authority and the first appellate authority upheld the demand of duty, along with interest and penalties. 2. Sufficiency of Evidence for Export: The appellant argued that the HDPE bags were indeed used for export purposes only, as evidenced by the 'H' Form provided by purchasers, which is for export of goods issued by the VAT department of the Government of Maharashtra. The appellant cited the case of Universal Packaging, where the Tribunal held 'H' Forms as conclusive proof of export. However, the Revenue contended that there was no evidence to show that the HDPE bags were utilized for exporting soyabean de-oiled cakes. 3. Applicability of Notification 43/2001-CE(NT): The Tribunal examined whether the appellant fulfilled the conditions of Notification 43/2001-CE(NT) dated 26.06.2001, which allows duty-free procurement for the use of export goods. The Revenue argued that the HDPE bags were not used for packing the exported goods and that the goods were not exported directly by the appellant. 4. Interpretation of 'H' Form as Proof of Export: The Tribunal deliberated on the significance of the 'H' Form as proof of export. While acknowledging 'H' Form as a conclusive evidence of export, the Tribunal found that in this case, the 'H' Form did not establish a connection between the goods cleared for export and the goods actually exported. Moreover, the documents did not indicate that the soyabean de-oiled cakes were packed in HDPE bags as claimed by the appellant. In conclusion, the Tribunal held that the appellant failed to provide sufficient evidence to prove that the goods cleared for export were packed in the duty-free procured HDPE bags. Therefore, the impugned orders were upheld, and the appeals were rejected.
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