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TMI Blog2016 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... llant denying exemption notification No. 203/92-Cus is clearly not sustainable - appeal allowed - decided in favor of appellant-assessee. - APPEAL NO.C/1092/04 - ORDER NO.A/93423/16/CB - Dated:- 24-10-2016 - Mr. Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Mehul Jivani, C.A. for the Appellants Shri. S.J. Sahu, Asstt. Commissioner(A.R.) for the Respondent Per : Ramesh Nair The issue involved in the present case is that the show cause notice was issued making allegation that the appellant has violated the condition V(A) of the Notification No. 203/92-Cus. In the show cause notice it was mentioned that input stage credit under Rule 57 A was availed, demand was confirmed by the adjudicating authority which was upheld by the Commissioner(Appeals). 2. Shri. Mehul Jivani, Ld. C.A. appearing on behalf of the appellant submits that firstly the show cause notice was issued without any basis to establish that input stage credit was availed in respect of exports goods. In absence of any evidence, allegation will not be sustained and the demand is also not sustainable on this ground itself. He further submits that appellant is merchant exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tura Fashions Pvt Ltd. Vs. Commissioner of Customs, Sheva[2003(161) ELT 1059(Tri. Mum)] 3. On the other hand, Shri. S.J. Sahu, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both sides and perused the record. 5. We find that the show cause notice though alleged that the appellant has violated the condition V(A) of the Notification No. 203/92-Cus but allegation is not based on any factual matrix. The department has not investigated anything to know whether the input stage credit under Rule 57 in respect of export goods was availed or otherwise. The show cause notice without any relied upon documents or without any factual information cannot sustain. In this regard this Tribunal has taken consistent view that show cause notice without having any evidence is not sustainable. The relevant judgments are reproduced below: Consumers Plastics Pvt Ltd 2. The common issue in both these appeals is whether duty could be demanded from an importer by seeking to revoke the benefit of exemption contained in Notification 203/92 which was extended to the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment has done, in order to make up for the acts or omissions of its officers, is to transfer to the importer the burden which now lies upon it of showing that credit has been availed of. We are hence unable to confirm the orders impugned before us. 5The appeals are allowed, and the impugned orders set . aside. Oriental Industries 2.We have heard Shri L.P. Asthana, and Shri George, learned DR. We find that there is no material on record to establish that input stage credit had been availed either by the merchant manufacturer or the transferees of the licences, therefore non-compliance with the requirement in the notification regarding filing of declaration of non-availment of Modvat credit on inputs used in the manufacture of exported goods cannot result in denial of the benefit of the notification. Further the stand of the appellants that the export goods, namely, HDPE woven fabrics were exempt from Central Excise duty and therefore the question of availing of Modvat on inputs used in their manufacture did not arise, has not been controverted. In the absence of any evidence to show that input stage credit had been availed either by the appellants or by the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so stands disposed of accordingly. Industrial Chem. Manufacturing Co. Ltd. 5. We have carefully considered the submissions made by both the sides and perused the records. In the show cause notice, the allegations made and the Commissioner confirmed in adjudication holding that the transferor-exporter has availed MODVAT credit and therefore, the appellant is not entitled for the exemption Notification No. 203/92-Cus. It is observed that neither in the show cause notice nor in the impugned order, the allegation of availment of MODVAT credit by the transferee of the licence was supported by any evidence from which any inference can be drawn that the exporter has availed MODVAT credit. Though the adjudicating authority has recorded that there is a declaration of non-availment of MODVAT credit by the exporter on the shipping bill/AR4s. However, it could, not be established by the adjudicating authority by adducing any evidence that the declaration is incorrect or false. In such a situation, it cannot be concluded that the exporter has availed input stage MODVAT credit in terms of Rule 57A of the Central Excise Rules, 1944 and there is any violation of condition (V)(A) of Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification on this ground when it was claimed. One of the conditions of the notification is that Modvat credit should not have been availed of and the burden of proving that the conditions, subject to which the notification would be available, falls on the person who claims the benefit of the exemption. In the present case, the benefit of the notification had been granted. If, thereafter, if the department was of the view that the exemption was not available and that the extended period of limitation could be invoked, it was up to it to show why it was not available, and by what act or omission of the importer, any of the factors in the proviso under Section 28(1) would apply. It was not open to it at this stage to withdraw the exemption which had been granted only on the ground that the eligibility to exemption was not proved. There is, therefore, no basis in the notice for invoking the extended period. The notice issued is therefore barred by limitation. Above judgment upheld by the Apex Court Exemption notification - Burden on department to show that exemption not available The Supreme Court Bench comprising Hon ble Mr. Justice B.N. Kirpal and Hon ble M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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