9911796707
TMI Blog2014 (12) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to EOU for job work. Government finds in some cases, the applicant availed cenvat credit, which is clearly in violation of permission granted to them. Further, the applicants contended that condition of non-availment of cenvat credit of duty involved on inputs supplied for job work to EOU, imposed vide above said permissions is inconsistent with existing statutory provisions. Government finds that when the applicant supplied the goods to EOU for Job work, subject to condition imposed on permission to do so, they cannot selectively choose or reject the provisions in their favour. There is no allegation that duty on finished goods for which rebate has been claimed in impugned cases, has been paid from improperly availed cenvat credit. Further, there is different statutory provision for recovery of cenvat credit, if availed improperly. Hence, as discussed in this para above, the rebate of duty paid at final stage cannot be held inadmissible provided the same has been paid from property availed cenvat credit. Similarly, in certain cases the applicant also availed benefit of DEPB, which is clearly in violation of condition No.(6) of the said letter. However, Government find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants are manufacturer exporter, a DTA unit, and have filed three rebate claims under Rule 18 of the said Rules read with Notification No. 19/2004 CE(NT) dated 6.09.2004 for the duty paid on goods exported. The applicants have two units. One Export Oriented Unit and another domestic. They are adjacent units. Domestic unit procured raw materials and sent it for job work to EOU for manufacturing the goods. EOU obtained permission to do job work. Permission has been given to EOU unit subject to certain conditions that the finished goods have to be exported from EOU unit and cannot be taken back to DTA unit etc. The applicants have exported goods from the EOU but duty is paid by the DTA unit. Later rebate was claimed for the duty paid on the goods exported. In respect of cases covered vide Sr.No.(1) (2), the adjudicating authority, vide the impugned order has rejected the rebate claims on the grounds that no duty can be paid on the goods manufactured by EOU. In respect of case covered at Sr.No.(3) the original authority sanctioned the rebate claims. 3. Being aggrieved by the said orders-in-original, both applicant as well as department filed appeals before Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial benefit of rebate on the goods exported by the applicant can be denied. Applicant states that Commissioner (Appeals) contended that the applicant submitted evidence showing challans moving inputs from DTA unit to the EOU. But there is nothing on record that the DTA unit is doing any process on the goods manufactured by the EOU. By recording this statement, Commissioner (Appeals) has accepted that DTA unit has procured raw materials and under proper job work challans they have sent to the EOU for job work. Commissioner(Appeals) has failed to appreciate that there is no mandatory requirement of manufacturing process done by the DTA unit on the raw material sent to EOU for sub contracting under para 6.14(b) of the Foreign Trade Policy. Failure to appreciate the same, Orders-in-Appeal passed without going through the legal provisions, need to be set aside on this ground alone. Further, Commissioner(Appeals) has contended that conditions laid down in the impugned permission letters are to be strictly followed as they are laid down for certain purposes and to avoid fraud by availment of multiple benefits like Cenvat Credit, DEPB benefits, All Industry Rate of Drawback at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is mentioned as M/s. Sun Pharmaceutical Industries Ltd. 100% EOU, is wrong and applicant has rightly prepared and filed the documents. Deputy Commissioner has alleged that applicant has not mentioned on the ARE-1 and on invoices regarding the permission letter. Applicant submits that Deputy Commissioner has failed to appreciate the fact that there is no such condition on the permission letter that permission granted by the Deputy Commissioner should be mentioned on the ARE-1 and on invoices nor there is such requirement in law. Further, applicant submits that, Deputy Commissioner has alleged that ARE-I and Invoices not showing separately two different identity of DTA unit and EOU. Applicant states and submits that on the ARE-1-applicant has mentioned such detail. Applicant submits that as given above applicant has mentioned registration no. of the DTA unit and name of the EOU as they have done job work on account of Panoli DTA Unit which is situated at above mentioned address. Therefore, it shows as two different entities as DTA Unit and as EOU. Applicant submits that on the invoices they have mentioned as Sun Pharmaceuticals Ind. Ltd. 100% EOU, A/c Panoli DTA, Panoli. 4.5 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object behind these all schemes is to encourage the exporter. It is in accordance with WTO agreement that taxes cannot be exported in other country. All that has to be seen that whether duty was paid on exports and such goods on which duty has been paid are exported or not. Applicant submits that in view of the above explanation, it is clear that final goods manufactured by the EOU is a job work done by 100% EOU for DTA unit. Commissioner (Appeals) has not provided any proof in support of the contention that it is not a job work done by 100% EOU for DTA unit. Applicant further states that Domestic ,unit of; the applicant, in accordance with the permissions granted by the Deputy Commissioner has sent raw materials/processed materials to the job worker i.e. EOU for further processing and converting the same into the finished goods vide respective job work challans. Thereafter, according to pars 6.14.(b)(1) of FTP, EOU unit of the Applicant has directly exported the finished goods from their premises. It can be checked from the ARE-1 issued by the EOU. It is undisputed fact that such goods so manufactured and cleared for exports against ARE 1 from the place of EOU, i.e. job worker hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants in the light of various statutory provision and submissions of parties. 8.1 Government finds jurisdictional Deputy Commissioner of Central Excise, Ankleshwar allowing job work from DTA to EOU unit vide permission letters dated 26.4.10 and 27.7.11 subject to following conditions: 1. The DTA unit shall be eligible for grant of drawback against duty suffered on their inputs which are processed by EOU unit for the manufacture of goods, which are exported. The DTA exporter is eligible for payment of Brand Rate of drawback against duty suffered on inputs, on submission of proof of duty. 2. No CENVAT credit shall be allowed to the DTA unit on the duty paid on inputs procured for DTA to job-work manufacturing. 3. The finished goods has to be exported from the EOU itself and cannot be allowed to be taken back to the DTA Unit. 4. The export is not to be counted under the parameters of EOU schemes and no benefit would accrue to the EOU. 5. Shipping Bill to be filed in the name of DTA unit and the name of the EOU unit will also be mentioned on Shipping Bill as a job worker. Both units name and address to be mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble provided the same has been paid from property availed cenvat credit. Similarly, in certain cases the applicant also availed benefit of DEPB, which is clearly in violation of condition No.(6) of the said letter. However, Government finds that there is no statutory bar on availing rebate of duty paid at final stage, if DEPB benefit is availed. Further, if DEPB benefit has been availed improperly there are different statutory provisions available for recovery of the same. 8.3 Government now proceeds to examine the condition stipulated at Sr.No.(3), (5) of the impugned permission letters. Condition No.(3) stipulates that finished goods has to be exported from the EOU itself. Government finds that this condition does not impose condition of requirement of export by EOU. Rather, it made it obligatory to export from EOU premises. This inference further finds force from condition stipulated at Sr.No.(5) of said permission letters, wherein, it has been provided in unambiguous term that shipping bill has to be filed in the name of DTA unit only and the name of EOU unit will also be mentioned as a job worker. When the shipping bill to be filed in the DTA unit and EOU name to be appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;t be held sustainable. 9. Government observes that the department has-contended that address and name of manufacturing unit is not appearing in excise and export documents. After going through contentions of applicants and sample perusal of documents, Government finds that the address appears in documents as Sun Pharmaceuticals Inds. Ltd. 100% EOU A/c Panoli DTA . As such, two distinct entities are clearly mentioned in the said address by writing word A/c . Further, there is no allegation by department, duly supported by substantial documentary evidences that goods manufactured by EOU as job worker has not been exported after payment of duty by DTA. As such, substantial conditions of export of duty paid goods stands established. Under such circumstances Government finds that if there is any procedural infractions in form of non-mentioning of full address of job worker, the same may be condoned in light of compliance of fulfilling of substantial conditions. 10. In this regard, Govt. further observes that rebate/drawback etc. are export-oriented schemes. A merely technical interpretation of procedures etc. is to be best avoided if the substantive fact of export having b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
