2018 (11) TMI 1508 - AT - Central Excise

100% EOU - clearance of lipsticks against advance DTA permission - benefit of N/N. 2/95-CE dated 4.1.1995 - benefit of notification denied on the ground that the manufactured product, viz. lipstick, was never exported by the appellant subsequently, therefore, the condition of EXIM Policy para 9.9(b) is violated - Held that - As to be eligible to the benefit of notification, the assessee has to discharge the burden that their case falls within the four corners of the conditions prescribed in availing the benefit of the exemption notification - the appellant could not prove the same. Also, there is no merit in the contention of the learned Advocate for the appellant that the demand is barred by limitation inasmuch as the benefit of the notification was obtained by misdeclaring the fact that lipsticks were exported or meant to be exported, then the appellant knew that the lipsticks manufactured would be cleared in DTA only. Appeal dismissed - decided against appellant.

Summary

Issues:
- Benefit of concessional rate of duty under Notification No.2/95-CE dated 4.1.1995 on clearances of lipsticks against advance DTA sales permission.
- Rejection of refund claim related to the demand amount.

Analysis:
1. Benefit of Concessional Rate of Duty:
- The appellant, a manufacturer of perfumes, lipsticks, and nail polish, was granted advance DTA permission for sale of these items in DTA. The dispute arose when the appellant did not export lipsticks, leading to denial of the benefit of Notification No.2/95-CE dated 4.1.1995.
- The appellant argued that since perfume and nail polish were exported, compliance with the conditions of the advance DTA permission was met. They contended that the permission allowed sale of all three products together within the prescribed value limit, citing a relevant tribunal judgment.
- The Revenue contended that the appellant obtained advance DTA clearance by misrepresentation, intending to clear lipsticks in DTA without exporting them. The appellant's actions, including entering into domestic production contracts for lipsticks, supported this claim.
- The Tribunal noted that the appellant's failure to export lipsticks violated the conditions of the advance DTA permission and the third proviso to Notification No.2/95-CE dated 4.1.1995. The judgment emphasized the importance of meeting prescribed conditions to avail exemption benefits, citing a recent Supreme Court ruling.
- Consequently, the Tribunal upheld the denial of the concessional rate of duty and dismissed the appeal, as the appellant failed to demonstrate compliance with the notification conditions.

2. Rejection of Refund Claim:
- The second appeal involved the rejection of a refund claim related to the demand amount. The appellant's refund claim of &8377; 2,99,824 was denied, as it was paid against a demand of &8377; 3,13,015.
- No detailed analysis or specific reasons for the rejection of the refund claim were provided in the judgment. However, it can be inferred that the rejection was likely based on the findings related to the denial of the concessional rate of duty on lipsticks, as the refund claim was directly linked to the demand amount.

In conclusion, the Tribunal's judgment focused on the appellant's failure to comply with the conditions of the advance DTA permission, leading to the denial of the concessional rate of duty on lipsticks and the subsequent rejection of the refund claim. The decision highlighted the importance of meeting notification conditions to avail exemption benefits and upheld the orders of the lower authorities, ultimately dismissing the appeals.