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TMI Blog2017 (5) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... of similar goods. The revenue had given the appellant an option to get the goods examined before clearance, however, the appellant chose not to do so. In the absence of any evidence to support the claim by the appellant that the goods are handicraft, we are unable to interfere with the impugned order in so far as the demand of duty is concerned. Penalty u/r 25 of CER - Held that: - the penalty u/r 25 cannot be imposed as the issue is of interpretation. The appellant had a bonafide belief and were in connection with the revenue for this purpose - penalty set aside. Appeal allowed - decided partly in favor of appellant. - E/1587/06 - A/86895/17/EB - Dated:- 19-4-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had produced the circular no.128/396/95-CX dated 25.05.1995 wherein following has been clarified. 2. A doubt has now arisen whether imitation or real zari made from duty paid metallised polyester film is also classifiable as 'handicrafts' and entitled to exemption as handicrafts in spite of the withdrawal of exemption to metallised polyester yarn. 3. It has been clarified by the Office of Development Commissioner (Handicrafts) that imitation or real zari made of gold, silver thread or man-made metallic yarn made out of duty paid polyester film (metallised/lacquered) namely Kasab, Kalabatu, tilla, wire thread or zari thread and metallic yarn have been specifically classified as 'handicrafts'. As the Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR took us through the impugned order. He argued that the person who claims exemption and concession, he has to establish that he is entitled to the exemption and concession. He pointed out that the Hon'ble Supreme Court in Mysore Metal Industries 1988 (38) ELT 369 (SC) has held that burden to prove eligibility to exemption is on the claimant. He also relied on the judgement in the case of Motiram Tolaram 1999 (112) ELT 749 (SC) to assert that the onus to show that the condition of notification are satisfied is on the person claiming the exemption. He also relied on the decision of Diwan Saheb Fashions P. Ltd. 2008 (229) ELT 240 to assert that the certificate of Development Commissioner can only be accept in case it is in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to prove or show that the same has been manufactured from vinyl acetate monomer on which appropriate amount of duty of excise has been paid, then the said manufacturer would not be entitled to get the benefit of the said notification. That in fact the sole Indian manufacturer may have been able to prove in every case that appropriate duty-paid raw material has been used in the manufacture of polyvinyl alcohol, does not mean that the requirement of proving the same is dispensed with. 10. It is, no doubt, true that for the purpose of Section 3 of the Customs Tariff Act, one has to assume that the importer of polyvinyl alcohol had actually manufactured the same in India. One can further assume, possibly without any difficulty, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duty under Section 3 of the Customs Tariff Act has not been paid on the vinyl acetate monomer used in the manufacture of polyvinyl alcohol. If it was possible to have shown that duty-paid vinyl acetate monomer had been used in the manufacture of imported polyvinyl alcohol, then the benefit of Excise Notification No. 185 of 1983 would have been available. It is possible that vinyl acetate monomer manufactured in India is exported and the same is used in the manufacture of polyvinyl alcohol which, in turn, is imported into this country in which case the importer would be able to show that the condition stipulated in the said notification has been complied with. 7. It is apparent that the appellant's are seeking exemption under noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of adjudication such a claim cannot be accepted as the garments, in question, are no longer available for inspection for ascertaining as to whether the same are handicrafts. Producing at the stage of adjudication, certificates from Development Commission, Handicrafts Certifying that the garments being manufactured by the appellants are handicrafts is meaningless as these certificates are not in respect of the garments cleared during the period of dispute. Therefore, the adjudication authority, has correctly rejected the appellant's claim for benefit of Notification 76/86-C.E. 9. It is apparent that the appellants were required to establish that the impugned goods were themselves handicrafts. In the instant case, the certif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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