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TMI Blog2018 (7) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... UDICIAL MEMBER Shri Nirupam Kar, Consultant for the Appellant (s) Shri S. N. Mitra, Asstt. Commr. (A.R.) for the Respondent (s) ORDER Per Shri P. K. Choudhary : This is an appeal filed by the Appellant against the Order-in-Appeal No.125/SLG/CUS/2017 dated 19.06.2017 passed by the Commissioner (Appeals) of Central Excise, Kolkata. 2. Briefly stated the facts of the case are that the appellant had claimed duty drawback in terms of Notification No.68/2011-Cus (NT) dt. 22.09.2011 for Mild Steel Stranded wire classifiable under tariff item No.7312 04. A show cause notice dt. 23.05.2014 was issued proposing to reject the payment of duty drawback amounting to ₹ 3,36,814/-. The adj. auth. confirmed the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further submitted that in the absence of any challenge to these final orders sanctioning refund, the present proceedings initiated for recovery of refund stands infructuous and cannot be sustained. In support of this submission, he relied upon the following decisions: (1) CC v. Millat Fibres [2011 (271) E.L.T. 512(Guj.) (2) Doothat Tea Estate Kanoi Plantation (P) Ltd. v. CCE, Shillong [2001 (135) E.L.T. 386 (Tri.-Kol.)] (3) Commissioner of C. Ex. Shillong v. Jellalpore Tea Estate [2011 (268) E.L.T. 15 (Gau.) (4) M/s. Eveready Industries India Ltd. v. CESTAT, Chennai [2016-TIOL-676-HC-MAD-CX = 2016 (337) E.L.T. 189 (Mad.) (5) CCE, Tirupathi v. Panyam Cements Minerals Industries Ltd. [2016 (331) E.L.T. 206 (A.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the export goods and there is no requirement of realization of export proceeds in case of warranted replacement of goods. In support of his submission, he relied upon the decision in the case of CCE, Raipur v. Simplex Engg Foundary Works Pvt. Ltd. [2016 (333) E.L.T. 112 (Tri.-Del.)]. The assessee therein filed rebate of duty paid on export of goods which was ultimately exported as replacement of the earlier defective goods. In the context of the requirement of realization of export proceeds, the Tribunal held that the question of foreign exchange realization does not arise as the exported goods are free replacement of defective goods. He also submitted that the appellants are eligible for availing CENVAT credit of service tax paid on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitted under law as held in the decision relied upon by the learned counsel for the appellant. Further I find that the appellants have exported the spare parts to their dealers abroad by way of free warranty replacement as per their contract which is placed on record and for exporting the said components they have availed the services of courier agency for which they have paid the service tax. I also find that the findings of the Commissioner (Appeals) that the appellants have not produced any evidence to prove that the goods are exported within the warranty period of replacement free of cost is wrong because the appellant has produced invoices on record which clearly shows that it is free warranty replacement and the invoices have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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