9911796707
TMI Blog1994 (2) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Licensing Committee approved issue of advance licence and accordingly JCCIE issued advance licence dated 16-8-1989 for import of Glycerine, Sodium Lauryl Sulphate, Sodium Monoflurophosphate, Spearment Oil and Peppermint Oil. A Duty Exemption Entitlement Certificate was also issued. As provided under Appendix 19 of the Import Policy, the supporting manufacturer effected 100% export of tooth paste under bond, utilising duty paid indigenous raw materials in the manufacture of the final product (for which requisite declaration under Rule 57A of Central Excise Rules was filed and approved), under cover of various shipping bills supported by AR 4 forms. In September 1989, M/s. Gavs Laboratories filed an application for cash refund of modvat credit under Rule 57F against AR 4 covering shipments made during the period July to September 1989 which was rejected in April 1990 as not maintainable. Similarly refund claim for the period October to December 1989 was rejected by order dated 26-6-1990 of the Assistant Collector. By order dated 27-12-1990 the lower appellate authority set aside the orders of the Assistant Collector, holding that there is nothing in Rule 57F(3) to compel a manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orting manufacturer has preferred E/3092/91-NRB. 4. Shri M.M. Mathur, learned J.C.D.R. submits that M/s. Gavs Laboratories are only supporting manufacturers as shown in Part B of the DEEC Pass Book issued to M/s. Usha Intercontinental (India) Ltd. with whom they had entered into an agreement for manufacture and supply of subsequent exports and Usha Intercontinental (India) P. Ltd. had imported raw materials free of duty under Notification 116/88 and passed on the same to the supporting manufacturer who manufactured the product and cleared it under bond for export against AR 4 and exported the goods on behalf of Usha Intercontinental in fulfilment of its DEEC obligation. He draws attention to the shipping bills filed wherein Usha Intercontinental (India) P. Ltd. have been clearly indicated as the exporters and to the AR 4s stating that the application for removal of excisable goods for export has been filed by Gavs Laboratories through M/s. Usha Intercontinental (India) Ltd. He invites our attention to the agreement executed between Usha Intercontinental and Gavs Laboratories and in particular to the opening clause wherein Usha Intercontinental has been described as a trading co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 57F(3), it would result in undue benefit and unjust enrichment as they would have already obtained the benefit of duty free imported materials to replenish the stock of duty paid indigenous raw materials used by them in the manufacture of the final products i.e. tooth paste exported on behalf of Usha Inter-continental (India) Ltd. He, therefore, prays for setting aside of the order of the Collector (Appeals) and restoration of the order of the Assistant Collector rejecting the refund claims. He submits that the Assistant Collector was empowered to go into the issue of eligibility to refund as the order dated 27-12-1990 of the Collector (Appeals) was only in the nature of a remand and only directed refund as due and admissible, if otherwise in order. 5. Shri A.S. Sunder Rajan, learned Consultant submits that once the lower appellate authority by order dated 27-12-1990 had annulled the orders of the Assistant Collector and ordered refund, it was not open to the Assistant Collector to reopen the issue and, therefore, the order dated 15-2-1991 of the Assistant Collector is without jurisdiction. He further submitted that all that remains to be done by the Assistant Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would accrue to the merchant exporter. Here again, I am unable to sue exactly what benefits the Asst. Collector had in mind to justify the denial of refund claimed by the appellants. Neither any specified authority of law nor any details of the benefit arising to the appellants because of this clause has been cited by the Asst. Collector to justify disallowing of the refund to them. In view of the above, I annul the two orders of the Asst Collector in this case and order that the refund of credit of duty, as due and admissible, be allowed to the appellants, if otherwise in order. The two appeals are disposed of accordingly. 7. We agree with the learned J.C.D.R. that this order is only in the nature of the remand order even though the expression remand is not explicitly mentioned therein. We, therefore, hold that it was open to the Assistant Collector to consider the eligibility to the refund to M/s. Gavs Laboratories. E/3092/91-NRB filed by M/s. Gavs Laboratories is accordingly rejected. 8. Coming to the merits of the matter, the crucial issue to be determined is whether this case is covered by the first proviso to sub-rule (3) of Rule 57F of the Central Excise Rules which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly met before making any import against the licence, the manufacturer/exporter after fulfilment of export obligation imposed against the licence may utilise the replenished material for further export/domestic production and subject to actual user conditions. Similarly, Licensing authorities may consider the request of registered exporters after fulfilment of export obligation for transfer of the replenished material to the supporting manufacturers concerned whose names appear in the DEEC for further export/domestic production and subject to actual user conditions [para 244(1)]. In the DEEC issued to Usha Intercontinental, M/s. Gavs Laboratories, are shown as the supporting manufacturer. The agreement refers to Usha Intercontinental as a trading company engaged in export of various products and M/s. Gavs Laboratories as the manufacturer of Fluoride tooth paste who will execute the foreign order on behalf of and in the name of the first party i.e. Usha Intercontinental to the overseas buyers. All the shipping documents are to indicate Usha Intercontinental as exporter and M/s. Gavs Laboratories are to be shown as the manufacturer on the shipping bill only. According to Clause 9 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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