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TMI Blog2013 (2) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... axpayer vide e-mail dated 30th January 2009 that the chassis bearing Sl. No. CPR240016 (Engine No. SFH423951) was originally manufactured at House Unit II of the Taxpayer and was cleared under Invoice No. 014152 dated 29-3-2007 for emission testing for conformity with emission norms; that the said chassis was received at Vellivayalchavadi under Rule 16 and cleared for export after testing; the details of production and clearance of the said chassis were not shown in the ER-1 return of Vellivayalchavadi Unit of the Taxpayer since the chassis was not manufactured at Vellivayalchavadi; the duty payment details were shown in the miscellaneous payment column of the ER-1 returns; the invoice number was shown in the ER-1 Return for clearance of the above chassis that evidences he removal of the same from Vellivayalchavadi. 2.1 On further scrutiny of the claim with the related documents produced in connection with rebate claim and the clarification furnished, the following were noticed : (i) that in the above referred invoice No. 014152, dated 29-3-2007 raised at Hosur Unit, the consignee address is shown as "stock Transferred to Ashok Leyland Ltd., Sales Yard, Vellivayalchavad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is also substantial time lag of more than 3 months from the date of clearance of the said goods from Vellivayalchavadi to the actual date of export as per Shipping Bill/ARE-1. 2.3 The duty paid on clearances by Hosur Unit-II, vide Invoice No. 014152 dated 29-3-2007, has been availed as CENVAT credit at Vellivayalchavadi vide Sl. No. 4760 dated 29-3-2008 under Rule 16 of the Central Excise Rules, 2002. It appeared that Rule 16 of Central Excise Rules did not contemplate clearance of finished goods itself on payment of duty under Rule 11 of Central Excise Rules 2002 to another manufacturing Unit for further testing. It appeared that the Taxpayer ought to have followed the procedure laid under Rule 16C instead of Rule 16. 2.4 It appears that the procedure followed by the Taxpayer Unit at Vellivayalchavadi Viz. the availment of credit under Rule 16 in respect of clearances consigned to them by the original manufacturer on payment of duty under an invoice issued under Rule 11 of Central Excise Rules, 2002 and reversal of the same at the time of export under Rule 18 of the Central Excise Rules, 2002 at Vellivayalchavadi are not in order. However, the reversal of the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y goods in addition to own goods exported after testing and re-packing-Credit taken on such goods -If duty paid at removal, same available as rebate - No evidence produced regarding any double or extra benefit - Commissioner (Appeals) findings that Rule 16 of Central Excise Rules, 2002 permits bringing of goods for any other reason and not only for remaking, reconditioning and repairing, proper - Rule 3 of Cenvat Credit Rules, 2004." 4.2 The ground taken by the Commissioner (Appeals) for rejection of the appeal is that the goods were originally manufactured at Applicants' Hosur Unit I, and were cleared on payment of duty 29-3-2007 for emission test prior to export to Vellivayalchavadi. But actual export took place on 21-7-2008 after 15 months without obtaining any permission from the Commissioner. Emission testing does not amount to manufacture and Rule 16A & 16B of Central Excise Rules, 2002 does not confer the status of the manufacturer in such a situation, the only option available in such a situation for export is to follow special procedure under Rule 16C of Central Excise Rules, 2002 where by special order should allow manufacturer to clear goods without payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v. CCE, Thane - 2009 (240) E.L.T. 306 (Tri.-Mumbai) (f) Brakes India Ltd. v. CCE, Chennai-III - 2007 (214) E.L.T. 380 (Tri.-Che.) 5. Personal hearing scheduled in the case on 28-9-2011 and 28-11-2011. Shri N. Jayaprakash, Sr. Manager (Corp. Affairs) appeared on behalf of the applicant who reiterated the ground of Revision Application. The Respondent department prayed that Order-in-Appeal being legal & proper may be upheld. 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. Government notes that the impugned exported goods were originally manufactured at Applicants' Unit at Hosur and subseqnelty transferred to Vellivayalchavadi Unit on payment of duty. Such testing facility was not available at their Hosur factory and it did not amount to manufacture. The Taxpayer unit at Vellivayalchavadi initially availed the credit and subsequently reversed the same during clearance for export. They further contended that since the testing facility was not available for their Hosur-Unit they cleared the goods on payment of duty to their Vellivayalchavadi Unit. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rebate. Commissioner (Appeals) has not discussed applicability of Rule 16 of Central Excise Rules, 2002 in his order and simply stated that applicant should have followed Rule 16C. The provision of Rule 16 are rightly availed by applicant and therefore goods exported within six months from date clearance from their factory. 11. In this instant case, department has not disputed the export of duty paid goods. The correlation between the goods cleared from the Hosur Unit, and the goods exported stands established here as all the vehicles have unique chassis no identification. Boards Circular No. 294/97-CX., dated 30-11-1997 clearly sates that when certain goods having special characteristics and are clearly identifiable with a unique engine No. and chassis No. it is possible to correlate the goods exported and payment of duty thereupon. In this circular the condition of direct export from the factory or payment of duty is also relaxed where such correlation and duty paid nature is established. Regarding difference in description of goods in ARE-1 & Shipping Bill applicant has stated that short main description is given in Shipping Bill due to shortage of space. Government note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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