9911796707
TMI Blog2012 (8) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that the respondent M/s. Indo Rama Textiles Ltd., Nagpur had procured the inputs without payment of duty under Notification No. 43/2001, dated 26-6-2001 for manufacture of final products in their manufacturing unit. After completion of manufacturing processes the applicant exported the finished goods on payment of duty following procedure as prescribed under Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001 and claimed rebate of duty paid on the final products so exported. Notification No. 43/2001 was amended w.e.f. 3-6-2004 vide Notification No. 10/2004-C.E. (N.T.), dated 3-6-2004. The condition No. vi of Notification was substituted to the effect that exports are to be effected in terms of Notification No. 42/2001 issued un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001. Hence cash rebate cannot be granted in respect of duty paid through Cenvat credit account on the goods cleared for export. 4.2 By not exporting the goods without payment of duty under Rule 19(1) they contravened their own undertaking amounting to non-compliance of the condition of Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 for procurement of duty free inputs for use in the export goods. 4.3 The Notification No. 43/2001 was amended vide Notification No. 10/2004-C.E. (N.T.), dated 3-6-2004 and an Explanation-II was inserted into the Notification No. 43/2001-C.E. (N.T.) which reads as Explanation-II - For the removal of doubt, it is clarified that the goods manufactured or processed using the excisable goods so procured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. Also the Hon ble Supreme Court has again endorsed the above views in its order in the case of UOI v. Rajindra Dyeing Printing Mills Ltd. [2005 (180) E.L.T. 433 (S.C.)]. In view of the facts and applying the ratio of the Hon ble Supreme Court s judgment, the actual export of the goods should be held as effected from 9-6-2004 to 25-6-2004 when the entry outward was granted to the vessel from the port of final carriage. Therefore, the goods should have been exported without payment of duty as per the amended Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 effective from 3-6-2001. 5. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. They filed their coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture on payment of duty as leviable thereon are not in dispute. The respondent herein has sought for upholding the impugned order-in-appeal dated 16-2-2005 as per his pleadings that as the inputs were procured duty free under Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 and rebate was claimed of duty paid on exported goods. The said notification was amended vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004. Thereafter C.B.E. C. issued clarification vide Circular No. 805/2/2005-CX, dated 11-6-2005 that the Notification No. 10/2004-C.E. (N.T.) will be applicable prospectively. 9. Government notes that while applying for permission for procurement of inputs duty under Notification No. 43/2001-C.E. (N.T.) assessee had exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lading were issued on 9-6-2004, 10-6-2004, 17-6-2004 and 25-6-2004. From these factual details it is quite apparent that goods were exported out of India only after 3-6-2004, i.e., during the period 9-6-2004 to 25-6-2004. The factual details are not disputed by respondents. 9.2 As per Explanation (a) to Section 11B, refund includes rebate of duty of excise on excisable goods exported out of India or excisable materials used in the manufacture of goods which are exported. As such the rebate of duty on goods exported is allowed under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 subject to the compliance of provisions of Section 11B of Central Excise Act, 1944. The Explanation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Madras had considered the issue relating to determination of stage at which goods can be treated as exported for the purpose of drawback claim under Section 75 of Customs Act, 1962 where as in the present case the issue relates to determination of date of export. So the ratio of said judgment is not applicable squarely. Moreover, Hon ble Supreme Court s decision in the case of CC, Calcutta v. Sun Industries - 1988 (35) E.L.T. 241 (S.C.) has discussed the aforesaid decision of Madras High Court and given its categorically view that export will happen only when the goods are taken to a place outside India as mentioned below :- The export means that the goods must be taken out to a place outside India. The expression taking out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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