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TMI Blog2003 (7) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the decision of Hon'ble CEGAT in the case of Simplex Global Impex Vs. CCE, Nagpur, 2003 (55) RLT 171 (CEGAT-Del), wherein it was held that, when disclaimer certificate from manufacturer is produced by the merchant-exporter at the time of hearing of appeal and not obtained on AR4 at the time of clearance, export rebate is not to be denied, when there is no dispute about payment of duty and export of goods. Govt. concurs with this view of Hon'ble Tribunal. Hence, this objection of the Applicant Commissioner is also not sustainable. However, Govt. observes Disclaimer certificate is to be obtained nor only from the merchant exporter but also from other Manufacturers of export goods. To this extent, Commissioner (A)'s order is modified. The next objection of the department is in one specific case involving a rebate of ₹ 41,144/- in respect of AR-5 No. 4 dt. 16.4.2001, it is clearly seen that the raw material has been shown as cotton 100% shirting 153 cms whereas the exported goods are bed sheets and pillow covers and it is not possible for using shirting material to manufacturing bed sheets and pillow covers. The Respondents submit that this is a hand written invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. On scrutiny of the above said claims it was revealed that : 1. The exporter was getting the goods manufactured from another manufacturer by the name of M/s. Kamal Trades. 2. The exporter was preparing the AR-5's and ARE 2, etc. but was not actually exporting the goods by himself. The export was made by M/s. IKEA Trading (India) Ltd., New Delhi, as seen from Shipping Bills and Mate receipt. 3. Name of M/s. IKEA Trading (India) Ltd., was not mentioned on the said AR-5/ARE-2 and no disclaimer certificate was given on the same. Therefore, a personal hearing was given to the exporter to clarify the above mentioned issues, on the basis of which Deputy Commissioner, Central Excise, Division F-1, Mumbai-I, vide Order-in-Original No. F-1/3/2002 dt. 4.2.2002 rejected the above said rebate claims, while making the following observations. 1. The exporter neither manufactured nor exported the goods in question. Procedure laid down by Trade Notice No. 45/2001 and Rule 18 of Central Excise Rules 2001 was also not followed by the exporter. 2. With reference to the goods manufactured from fabrics received under Invoice No. 78/08-04-2001, it is seen that the description of fabrics used in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-reference of the name of M/s. IKEA Trading (India) Ltd. on the subject AR5/ARE-2 is waived, since the fabrics for duty paid and made-ups were duly exported. 3. Against this order the Commissioner (A), the present Revision Application is filed on the following grounds:- 1. M/s. Creative Mobus Fabrics Ltd. are neither exporter nor manufacturers and it is evident from the Shipping bills submitted by them. 2. CBEC Circular No. 81/81/94-CX dt. 25.11.94 makes it a requirement that the disclaimer certificate should be given in favour of the exporter on the AR-4, in the instant case there is no such disclaimer certificate given on the body of the aforesaid document, which is in contravention of the above mentioned Circular. 3. In one specific case involving a Rebate of ₹ 41,144/- in respect of AR-5 No. 4 dt. 16.4.2001 it is clearly seen that the raw material has been shown as cotton 100% shirting 153 cms whereas the exported goods are bed sheets and pillow covers. 4. Circular No. 120/95-CUS dt. 23.11.1995[reported in 1995 (11) RLT M192] clearly mentions several conditions for export by a third party to be eligible towards fulfilment of export obligations of EPCG license holder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rics pass on to any of the job workers, the fabrics and the made ups remain their goods and the Central Excise Duty as paid by these job workers is paid on their behalf and is charged to their account. These processes are done by the job workers on contractual basis and these units are merely processors of the fabrics in question and they are the manufacturers of these fabrics. From the premises of the made up converter the goods in question are subsequently sought to be exported under the Central Excise Procedure and in conformity of the Central Excise Act and the Rules made thereunder and under the physical supervision of the Jurisdictional Central Excise Officers. The goods in question are cleared from the jobworkers premises under cover of Export documents like the AR-5/ARE-2 as per the provision of the Central Excise Rules, they physically transfer the goods in question to the Customs Area for physical Examination by the Customs Officers. At this point of time the merchant exporter comes into the picture wherein the merchant exporter, viz. M/s. IKEA Trading Co., a recognised Exporter, generates Export related documents like the shipping bills and other required documents, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a basis of a deliberate misinformation so as to change the end use of the fabric. The correct reading of the description should be read as sheeting and not 'shirting'. In fact there are many invoices of the same processor wherein the writing is of the same clerk who has written this invoice No. 78; in all other invoices, the description is reads sheeting and the same has been accepted by the ld. Appellant. An objection on this one particular invoice is without any evidence. In fact the convertor where the said fabric is received has very clearly in his documents shown the description of the fabrics as sheeting and also that the said convertor M/s. Kamal Trades who is a licensee and is registered with Central Excise, has also filed a declaration with their jurisdictional Central Excise Superintendent Office on receipt of this lot where the description is clearly whom an sheeting and this declaration has also been verified by the Central Excise Officer in the charge of the unit, who has authorised the opening and cutting of the fabric in question for the manufacture of made ups as per the formula approved by the Jurisdictional Deputy Commissioner of Central Excise. (e) Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry premises are directly consigned to the convertor's premises (M/s. Kamal Trades) in a packed condition with distinct markings for identification of the bales/packages. On being received in premises M/s. Kamal Trades, the said convertor files a declaration with the jurisdictional C. Ex., Range Supdt. Office. The declaration gives the details of the description of the fabrics, the quantity received, the invoice number, the address of the sender, etc. On receipt of this declaration, an Officer of the Range visits the premises of M/s. Kamal Trades for physical verification then signs on the body of the declaration and also on the body of the respective invoice as allowed for opening. After this the convertor files an application with the Divisional Deputy Commissioner, C.Ex, for approval of the formula for conversion of these receipted fabrics into made ups i.e. bed spreads and pillow covers, herein in this application a detailed worksheet giving the quantum of fabrics that will be consumed for the manufacture of one individual Bed cover and pillow cover is given alongwith the wastage, if any. After verification by the Officers of the Division, the Deputy Commissioner accords san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles as referred to in the relevant AR5/ARE2 documents. (k) It is awell settled legal position that substantive benefit of rebate in case of export cannot be denied for procedural and/or technical non-compliance. This is more so when factually they have established that the same duty paid goods (fabrics) were used/consumed in the manufacture of export goods. They rely on the following cases. (i) Krishnan Filaments Ltd., 2001 (131) ELT 726 (ii) Seema Silk Sarees, 2001 (127) ELT 307 (iii) Allanasons Ltd., 1999 (111) ELT 295 (iv) Indo Euro Textiles Pvt. Ltd., 1998 (97) ELT 550 5. Opportunities for personal hearing were given on 24.12.02, 6.2.03 and 2.4.03 Sh. V.S. Nankani and Sh. M.M. Sukheja, advocates appeared on behalf of the Respondents and reiterated earlier submissions. 6. Govt. has carefully considered the Order-in-Original, Order-in-Appeal and the submissions made. 7. The first objection of the department is that, M/s. Creative Mobus Fabrics Ltd. are neither exporter nor manufacturers of the goods as is evident from the Shipping Bills. The Original Authority, also, observed that as per Para 8.2 of Export Procedure in the Central Excise Manual, only a manufacturer or a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme or EPCG holder could be counted for propose of discharge of export obligation of licence holder of, A view had been expressed that the definition of exporter under Section 2 (20) and of importer under Section 2 (26) of the Customs Act, 1962 require that there can be only one importer/one exporter at a time for the goods exported or imported, as the case may be. The matter was discussed by the Board and the issue was also referred to the Law Ministry for opinion. The Law Ministry have not clarified that Section 13 of the General Clauses Act, 1897 provides that unless there is any thing repugnant in the subject, words used in singular shall include the plural and vice-versa. Accordingly the terms 'Exporter' and 'Importer' can be said to cover one or more than one exporter/importer of the goods within the meaning of Section 2 (20) and Section 2 (26) of the Customs Act, 1962. In view of Ministry of Law's opinion, it has been decided there is no objection on to allowing third party exports under the Customs Act . 10. In view of the above factual and legal position, Govt. is of the opinion that, it cannot be said that M/s. Creative Mobus Fabrics are neither ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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