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TMI Blog2007 (3) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A.V. Thomas Co., for short) against certificates in "Form-H" issued by the latter and these customers exported cartons as packing material for their own goods. The appellants did not include the value of the cartons cleared to these customers for export, in the aggregate value of clearances of excisable goods for the purpose of determining their eligibility for SSI exemption. In other words, by excluding the value of the said clearances covered by "Form-H" certificates, the appellants found their aggregate value of clearances to be below the limit (Rs. 1 crore or Rs. 3 crores) for each of the financial years. After scrutiny of records and allied enquiries, the department came to know the method adopted by the appellants, and, in a show cause notice, raised a demand of duty on them by re-computing the aggregate value of clearances above the limit of Rs. 1 crore/Rs. 3 crores and denying them the benefit of SSI exemption for the aforesaid period. This demand was raised under the proviso to Section 11A(1) of the Central Excise Act and Rules 4 8 of the Central Excise Rules, 2002. The SCN also sought to charge interest on duty under Section 11AB of the Act as also to impose penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomer for packing shoes (for export) were not to be treated as a clearance for home consumption and hence not to be taken into account in the determination of aggregate value of clearances under Notification No. 8/2000-C.E (SSI exemption). Counsel pointed out that the decision in International Corrugators case was followed by a Division Bench of the Tribunal in the case of CCE, Kanpur v. Radhey Paper Udyog Another [Final Order No. 114-115/2005-B dated 27-1-2005 in appeal Nos. E/2656 2526/2004]. Reliance was also placed on the Tribunal's decision in Kansal Knitwears v. CCE Chandigarh, 2001 (136) E.L.T. 467 (Tri.-Del.), wherein it had been held that the benefit of rebate of duty was not deniable in respect of inputs or intermediate products used in the manufacture of export goods, on the ground of non-compliance with any procedural requirement where proof of actual export was available. In the same context, ld. counsel also referred to the Supreme Court's judgment in Thermax Private Ltd. v. Collector of Customs, 1992 (61) E.L.T. 352 (S.C.). It was also pointed out that the appellants had established correlation between the cartons cleared by them for export and those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y numbered H Forms/ST-XXII form or equivalent Sales Tax form. After the goods have been exported by the merchant-exporters, the latter issues these forms to the manufacturers of the goods. The merchant-exporters in turn have to account all these serially numbered forms to the Sales Tax Department by furnishing a proof that the goods have been exported out. These proofs are in the form of presentation of the Shipping Bill duly completed by the customs, bill of landing, foreign exchange remittance certificates etc. The liability of the manufacturers to the Central Sales Tax gets discharged only when they submit these forms to the Sales Tax Department. It is, therefore, seen that indirectly exports get accounted for through the issue of H-form or ST XXII Form. Thus, photocopy of H-form or ST-XXII Form or any other equivalent Sales Tax form duly attested and stamped by the manufacturer or his authorised agent will be accepted for purpose of proof of export. It is clarified that this facility is available only in respect of the exempted units which undertake exports themselves or through merchant exporters directly from the unit itself The facility is not available for the supplies mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case). If the very physical export of the goods sold by the appellants to their customers is required to be made from the appellants' premises, why should the appellants be required to gather proof of export (in the form of Form-H certificate) from their customer ? We have perused a specimen "Form H" certificate issued by M/s. A.V. Thomas Co. to the appellants. This document (No. 107 dated 3-1-2005) certified as under "Certified that the goods the Particulars whereof have been specified in items (1) and (2) of the Schedule below supplied in pursuance of my/our Purchase Order No. (ANNEXURE ENCLOSED) Purchased from you as per bill/cash memo/Challan No. (ANNEXURE ENCLOSED) dated (ANNEXURE ENCLOSED) for Rs. 88,64,004.15 have been utilized by me/us in the packing of the goods exported by me/us outside the territory of India, as per the details given in item (3) to (6) of the said schedule." The Schedule to the above certificate described the goods as "boxes/packing materials" and also provided export details including the particulars of the relevant Air Waybills in proof of export of goods across the Indian customs frontiers. It was submitted by learned counsel that all the "Form- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 4/A.R. 5 procedure. Where proof of export was furnished within 6 months, the clearances made for export were not to be added to clearances for home consumption. Circular No. 648/39/2002-CX. affirmed the position and further clarified that the above facility was available only in respect of exempted units which undertook exports themselves or through merchant-exporters. Ld. SDR argued that, for the above benefit, the SSI unit must be an "exempted unit", i.e. unregistered unit, and the export must be made either directly or through merchant-exporter. Neither of the Notifications speaks of registration of SSI unit. In the SSI scheme, a manufacturing unit is said to be "exempted unit" for a given financial year if it has enjoyed SSI exemption in the previous year. If, by excluding the clearances made by such a unit for export from the computation of aggregate value of clearances in a given financial year, it is within exemption limits, it is an 'exempted unit'. In this sense, the appellants remained an "exempted unit", thereby satisfying the first condition proposed by SDR. Circular No. 648/39/2002-CX. specifically refers to goods manufactured and cleared by SSI unit for packing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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