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TMI Blog2013 (9) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... re was a condition that the importer shall not avail of input stage credit on the goods exported. Therefore, it is difficult to accept the contention that reversal of credit amounts to non-availment of credit, especially when the reversal was made long after the exports have been made and there is no satisfactory proof that the reversal was done correctly. Benefit of duty exemption under Notification No. 203/92-Cus - Duty Demand - Interest – Held that:- The confirmation of duty demand made in the order along with interest thereon was upheld - the assesse claimed to have reversed the input stage credit - However, they did not pay the interest and the interest liability was discharged only in June, 2000, that was, after a lapse of more than 3 years from the due date stipulated in the Amnesty Scheme –COMMISSIONER OF CUSTOMS, CHENNAI Versus SHASUN DRUGS & CHEMICALS [2004 (4) TMI 156 - CESTAT, CHENNAI] and COMMISSIONER OF CUSTOMS, CHENNAI Versus AKSA POLY BAGS LTD. [2003 (8) TMI 430 - CESTAT, CHENNAI] - the demand of duty was uphled by denying the benefit under Notification No. 203/92 – Decided against assesse. Imposition of Penalty u/s 112 – Held that:- No penalty can be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner vide order dated 1-1-2009 confirming the demands against which the appellant preferred an appeal before this tribunal which once again set aside the order vide order dated 3-3-2009 and remanded the case back with a direction to take fresh decision on all the issues in accordance with law after giving the assessee a reasonable opportunity of adducing evidence and of being personally heard . In pursuance to the said direction of this Tribunal, the impugned order has been passed. 3. Before the adjudicating authority, the appellant had submitted a certificate dated 1-6-2001 issued by the jurisdictional Range Superintendent showing the details the input stage credit reversed by them on 12-7-1995 amounting to Rs. 6,61,102.63 in respect of the export transactions undertaken by them under the value based advance licence during July, 92 to August, 1993. The said certificate gives the details of the AR4 nos. and date, value thereof, credit pertaining to the said AR4, the amount of credit required to be reversed and the amount of actually reversed. As per the certificate, the amount required to be reversed is Rs. 5,72,941/- whereas the credit actually reversed is Rs. 6,61,102.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 31-1-97. However, in the instant case the appellant paid the interest only on 28-6-2001 thereby violating the terms and conditions of the amnesty scheme. Accordingly, the adjudicating authority has confirmed the duty demand of Rs. 11,71,180.60 along with interest @ 24% under the provisions of Section 28 of the Customs Act, 1962 and an equal amount of penalty has been imposed on the appellant under Section 112 ibid. Hence the appellant is before us. 4. The ld. Counsel for the appellant makes the following submissions :- (1) In the instant case the Modvat credit taken initially was reversed by entry No. 3328 dated 12-7-1995 as verified by the jurisdictional Range Superintendent. However, the show cause notice has been issued only on 20-6-98 and therefore, the demand raised in the notice is time-barred. He relies on the decision of the Tribunal in the case of AMC Coated Fabrics Pvt. Ltd. [2007 (218) E.L.T. 707] wherein in a similar situation the demand raised was held as time-barred. The said decision was upheld by the Hon ble High Court of Bombay [2009 (236) E.L.T. 452]. (2) In a number of cases decided by the Tribunal and the Hon ble Apex Court, it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 203/92-Cus clearly stipulated that the export obligation is discharged, within the period specified in the said certificate or within such extended period as may be granted by the Licensing authority, by exporting goods manufactured in India in respect of which no input stage is obtained under Rule 56A or 57A of the Central Excise Rules, 1944 for availing the benefit of exemption under the said notification. In the bill of entry filed, the appellant categorically subscribed to a declaration that they would not avail the input stage credit. In complete breach of this declaration and the condition, the appellant availed input stage credit. They claimed to have reversed the credit only in 1995 after a lapse of more than two years after completing the export obligation. In the Cheviot Company Ltd. case decided by this Tribunal 2010 (255) E.L.T. 139, in the context of Notification No. 30/2004-C.E. which stipulated non-taking of credit for availing the benefit of exemption, it was held that subsequent reversal of wrongly availed credit did not amount to non-availment of credit and therefore, the benefit of exemption would not be available. (2) The appellant claims to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the ratio in Bharti Telecom case held that the benefit of Notification No. 203/92 will not be available and the importer is liable to pay the customs duty along with interest. In the light of these, he pleads for upholding the impugned order and dismissing the appeal. 6. We have carefully considered the submissions made by both the sides. We have also perused the records. Our findings and conclusions are detailed in the ensuing paragraphs. 6.1 From the records of the case it is seen that the appellant imported mild steel sheets/coils for manufacture and export of mild steel angles/panels/claddings under advance licence No. PL 1514179 vide bill of entry No. 006092 dated 19-4-1994. The Revenue foregone in respect of the said imports under Notification No. 203/92-Cus. was Rs. 11,71,180/- and the appellant undertook not to avail input stage credit in respect of the said imports. However, in contravention of the said condition, the appellant took the credit and did not inform the same to the customs authorities. Accordingly the customs authorities initiated action against the appellant vide show cause notice dated 19-6-1998. In para 3 of the said notice, it is clearly state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in its circular dated 10th January, 1997. In view of the contentions made by the appellant, this Tribunal remanded the case back to the adjudicating authority. The Tribunal also noted that Counsel for the appellant says that he will make submissions to the Commissioner, enclosing the evidence to show reversal of credit within a month from the receipt of the order. It is in pursuance of the said undertaking, the appellant approached the jurisdictional excise authorities and obtained a certificate dated 01-06-2001 indicating details of credit taken and reversed. 6.3 The case was re-adjudicated once again vide order 9-1-2009. Though the appellant submitted the credit reversal certificate before the adjudicating authority, the appellant did not submit any document to correlate the reversal particulars with the shipping bill particulars which was asked for by the department vide letter dated 15-12-2008. The adjudicating authority has recorded a specific finding in this regard in para 9 of his order as follows :- 9. On examination of the Modvat reversal particulars submitted by the notice during hearing, I find that no co-relation could be made between the credit reversed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were found to have availed input stage credit on the materials used for the manufacture of the exported products. Although Modvat credit reversible under Amnesty Scheme was Rs. 5,72,941/- the appellant claims to have reversed an amount of Rs. 6,61,102/- and on verification of the documents submitted by the notice, it could not be confirmed that the amount reversed pertained to the input credit availed by them during 92-93. The notice claimed that they were entitled to the benefit of the Amnesty Scheme of 1997 and when asked why they did not pay the interest before 31-1-2007 as envisaged under the Amnesty Scheme, they changed the stand that they had reversed the Modvat credit in terms of Circular No. 116/27/97-CX., dated 6-4-1995. Accordingly he has once again the duty demand along with interest thereon and imposed equivalent amount of penalty. 6.5 In the present case, the exports were undertaken in 92-93 and the imports duty took place in April, 94. Thus it is a case of prior exports and subsequent imports. In other words, when the goods were imported, the export obligation had already been discharged and the inputs used in the export goods, duty credit had been availed. Yet, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has produced a chart which they claim to he reconciliation of the export transactions and the credit reversal. The said document is not authenticated by any one, including the appellant. Be that as it may, the document was tried to be matched with the duty reversal particulars which could not be done. We have also perused the chart. The chart speaks of 20 shipping bills but the no. of AR4s mentioned in the duty reversal chart are 41. There is no matching done between the AR4s and the shipping bills. Even accordingly to the appellant, matching could be done only in respect of 15 shipping bills and in respect of balance 5 shipping bills, no matching could be done. From the documents submitted by the appellant, which are incomplete in several respects, it is impossible to verify the claim of the appellant with regard to the credit reversal. The conduct of the appellant in not submitting satisfactory documentary evidence complete in all respects in respect of their claims coupled with the enormous delay in their submission for verification is highly unsatisfactory, to say the least. Since it is the appellant who has claimed the benefit of duty exemption, the onus of leading evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdeclaration. This Tribunal in the case of Cheviot Company Ltd. (supra) relying on their earlier decision in the Hind Lamps Ltd. case [2010 (250) E.L.T. 237] held that subsequent reversal of credit cannot be deemed as non-availment of credit when a condition is stipulated in the exemption notification that the appellant shall not take Cenvat credit. In the present case, under Notification No. 203/92-Cus., there was a condition that the importer shall not avail of input stage credit on the goods exported. Therefore, it is difficult to accept the contention that reversal of credit amounts to non-availment of credit, especially when the reversal was made long after the exports have been made and there is no satisfactory proof that the reversal was done correctly. 6.7 There is one more reason to come to the above conclusion. If the reversal of credit amounted to non-availment of credit, there was no need for the Government to come up with an Amnesty Scheme vide Circular No. 285/1/97-CX., dated 10-1-1997 which specifically provided for reversal of Modvat credit along with an interest @ 20% on the amount of Modvat credit retained for the period between the date of export and the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions of the Amnesty Scheme. The requirement of the scheme not having been fulfilled and the appellant violated the terms of the exemption Notification No. 203/92 by availing modvat credit contrary thereto, the show cause notice was confirmed imposing customs duty and also the interest and penalty. 6. . 7. Challenging the order of the Tribunal, learned counsel for the appellant contends that the respondent was not justified in denying the benefit of the Amnesty Scheme to his client on the ground that it had reversed the Modvat credit earlier to the enforcement of the scheme. There is considerable force in the contention. The Amnesty scheme recognizes the already reversed Modvat credits. The reversal of credit made by the appellant in 1994 has to be treated at par with the reversal of credits made by exporters after coming into force of the Amnesty scheme. 8. According to the Amnesty Scheme, the interest for the period between the date of export, and the date of reversal has to be deposited by 31st January, 1997. It was not deposited by the said date. It was deposited only on 7th February, 1997. There is no provision for relaxation or extension of time to dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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