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TMI Blog2012 (8) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 (247) E.L.T. 574 (Tri.-Ahmd.)]. 1.1 The appeal was admitted by this Court on 16-3-2011 [2012 (275) E.L.T. A148 (Guj.)] for consideration of following substantial question of law : Whether in facts and circumstances of the case, CESTAT committed an error in coming to the conclusion that despite non-compliance with certain requirements of circular dated 25-7-2002, assessee had substantively complied with requirements and only procedural conditions are not satisfied and that therefore, was entitled to claim exemption? 2. The brief facts involved in the case are that respondent-assessee M/s. Amar Packaging Industries is the manufacturer corrugated cartons and duplex boxes, which are the excisable items under the relevant entry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly claimed in the show cause notice was ₹ 7,97,201/-. The corrugated cartons etc. cleared by the assessee were liable to be paid at 16% ADV. The show cause resulted into Order-in-Original (OIO) dated 25-4-2004 by the competent authority confirming the said duty demand under Section 11A of the Central Excise Act, 1944 (hereinafter referred to as the Act ), with recovery of interest as per Section 11AB of the Act as well as the penalty under the relevant rules. 2.3 The explanation of the assessee was that it had manufactured and exported the cartons under H form from their factory through merchant exporters who in turn exported the cartons as package of frozen marine products from their cold storage. Secondly, the H forms sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conditions. It was submitted that the export of goods directly was an essential condition, which could not be said to have been satisfied since the respondent had not exported the goods directly from the factory. Learned advocate for the appellant further submitted that the eligibility of the assessee was in dispute and burden of proof regarding entitlement of exemption was on the assessee. It was submitted that the requirements in the nature of condition was not satisfied, which were pre-requisites. The clearances by the assessee did not qualify as export. 4.2 Learned advocate for the Department relied on Supreme Court decision in Commissioner of Central Excise, Allahabad v. Ginni Filaments Ltd. [2005 (181) E.L.T. 145 (S.C.)] for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der by the Tribunal and having gone through the orders by the Excise Authorities below, which were considered by the Tribunal, what is not in dispute is that the clearances of the corrugated cartons etc. were made by the assessee to the merchant exporters which were required by the merchants for packing their products. It is also not in dispute that the product namely frozen marine product manufactured by these merchants was meant for export and were exported. Circular dated 20-5-1996 of the Board deals with the proof of the export, which inter alia required that the document prescribed by the Central Sales Tax Department namely the H forms would be accepted as proof of the export. The circular dated 25-7-2002 was issued explaining the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the department is based on the above circular and it is contended that conditions prescribed therein were not met with. It is clear that H form is not dispensed with as a document of proof of export. The acceptance of H form to prove and establish that the export has taken place is only clarified in the above circular. This facility will be available for the purpose of exemption in respect of exempted unit which undertake exports themselves or through merchant exporters directly. 5.3 It is an admitted position that the merchant exporters having issued H forms to the assessee, the proof of export is established in terms of requirement of above circular. It cannot be said that the condition of export has not been satisfied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Circular issued by the Board from time-to-time in detail. We find ourselves in respectful agreement with the reason adopted by the Tribunal in Vadapalani Press case in coming to the conclusion in favourt of the appellants in that case and accordingly, we allow the appeal filed by the appellants with consequential relief. 7. In light of foregoing reasons, the Tribunal has not committed any error in allowing the appeal of the assessee. It is rightly held that requirements of the circular were substantively complied with. Accordingly, the substantial question of law is answered in the negative and in favour of the assessee and it is held that the respondent-assesse is rightly held entitled to claim exemption. 8. The appeal is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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