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TMI Blog2010 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected, Government observes that there is no infirmity in the impugned order-in-appeal upheld, Revision application is rejected being devoid of merit. - 195/74/2007-RA-CX - 381/2010-CX, - Dated:- 23-3-2010 - Shri D.P. Singh, J. Shri. K.I. Vyas, Advocate, for the Assessee. [Order]. This revision application has been filed by M/s. Sheetal Exports, Surat against the order-in-appeal no. CPA(3177)146/MI/2006, dated 13-11-06 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone-I. 2. Brief facts of the case are that the applicant is said to have purchased duty paid dyed and/or printed fabrics made from 100% polyester filament yarn/texturised yarn with or without metalised yarn falling under Chapter 5406.00 of Central Excise Tariff Act, 1985 from manufacturer M/s. Sofina Fashion, Boisar Distt. Thane and exported it under the provisions of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-04 and filed 17 rebate claims amounting to Rs. 38,03,971/- for sanction. On scrutiny of export documents it was observed that the appellant has failed to submit the duplicate copies of central excise invoices with triplicate copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority as he was not carrying the original invoices with him at the time of personal hearing. 2.2 The impugned order is against the Principles of natural justice and bad in law in that it has relied upon the alleged communication dated 22-12-05 from the Dy. Commissioner (Prev.) Central Excise, Thane-II without supplying the copy of the same. 2.3 The impugned order is against the judicial pronouncements in that it has erroneously concluded that the ARE-Is and the invoices issued by the registered unit are bogus. It is submitted that fraud or misrepresentation by the registered unit as such does not render the goods supplied to and exported by the applicant a non-duty paid in the absence of any involvement or knowledge on the part of the applicant. 2.4 It is submitted that the responsibility of the exporter receiving the duty paid goods for export is similar to the duty of the manufacture or producer of excisable goods to ensure that the appropriate duty of excise has been paid on the inputs on which it is availing the CENVAT Credit Rule 9(3) of the said CENVAT Rules. 2.5 The adjudicating authority has failed to appreciate that the applicant has taken the reasonable steps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Surat. It is submitted that the applicant has all the transport documents related to the movement of goods from Boisar to Surat that prove the genuine nature of transaction between the said M/s. Sofina Fashion and the applicant as far as the applicant is concerned. It is submitted that the applicant was never asked to prove the bona fide nature of its transaction with the said M/s. Sofina Fashion and without even affording any opportunity for the same was punished by rejecting the 4 rebate claims contrary to principles of natural justice, they claim. 3. Commissioner (Appeals) after considering the submissions rejected the appeal of the applicant. 4. Aggrieved by this order-in-appeal, the applicant filed the revision application on the following additional grounds : 4.1 That the Appellate Commissioner erred in relying on the alleged communication dated 22-12-05 allegedly received by the Adjudicating Authority from the Dy. Commissioner (Prev.) Central Excise, Thane-II. Information, given in the said communication dated 22-12-05 of the Dy. Commissioner (Prev.) Central Excise, Thane-II is without any adjudication and without providing any opportunity to the applicant to oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of 3 months, allow it to be presented within a further period of three months. The revision application was filed on 8-3-07 against the said order-in-appeal received by applicant on 16-11-06. The initial period of 3 months expired on 15-2-07. Thus the revision application is filed after a delay of 23 days. 8. In the instant case, the applicant has filed revision application within the extended period of 3 months, as the proprietor was suffering from sever jaundice during the relevant period for which he has also filed an affidavit. Keeping in view, the genuine reason and proper justification for delay, the Revisionary Authority in exercise of powers under Section 35EE(2) having been satisfied with the reasons for delay and condones the delay as the same is within condonable limit. 9. On perusal of records it is observed that applicant had purchased processed fabrics made from 100% polyester filament yarn/texturised yarn from M/s. Saofina Fashions. The applicant had filed 17 rebate claims pertaining to respective ARE-I as enumerated in the order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove that their transactions were transparent and bona fide in nature and are not influenced by any extra commercial consideration and there was no involvement of the applicant in committing said fraud. The criteria laid down as above in the said Tribunal judgments is required to be fulfilled by the merchant-exporter to make the rebate claims admissible to him. The Central Board of Excise and Customs has clarified in its Circular No. 766/82/2003-CX., dated 15-12-03 as under : Para 5 On the issue of availment of credit by the user manufacturer, it is clarified that action against the consignee to reverse/recover the cenvat credit availed of the such case need not be resorted to as long as bona fide nature of consignee s transaction is not in dispute The said provision of the circular implies that bona fide nature of transaction between the merchant-exporter and supplier-manufacturer should not be in dispute. In this case, the goods were not manufactured by the manufacturer-supplier who issued bogus duty payment documents. So the lower authorities have rightly observed that duty paid character of goods exported was not proved. As such the rebate claim was rightly rejected. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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