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TMI Blog2018 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... er Notification No. 203/1992-Cus. dated 19.05.1992 on the basis of licence procured by them on transfer by the following exporter/licence holder:- (a) Chevro Leather Manufacturers (b) Moolchand Exports Ltd. (c) Bajaj Garments Pvt. Ltd. (d) KMA Finished Leathers Pvt. Ltd. (e) S.L. Leathers Pvt. Ltd. 2.1 The Department has alleged that the appellants have not fulfilled the condition of the notification i.e. 203/1992-Cus., in as much as they have not submitted proof to the effect that no input stage credit is obtained under Rule R57A of the Central Excise Rules, 1944. A show-cause notice dated 29.01.1999 was issued to the appellants. The appellants claim that they have not received the said show-cause notice. Commissioner vide Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imports have been made. Nonetheless the fact that the certificates were issued by the Central Excise Authorities and copies were submitted even though onus was not on them. The learned Commissioner has taken consideration only one certificate issued in respect of M/s Chevro Leather Manufacturers who had factory falling under different jurisdiction of Central Excise and that certificate was given only by one such jurisdiction Officer. The learned Commissioner has not discussed other licences. The learned Commissioner has not followed the decision of Hon'ble Supreme Court in the case of Commissioner of Customs (Imports). Bombay Vs. HICO Enterprises - [2008 (228) ELT 161 (SC)]. The show-cause notice does not contain any allegation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been obtained by the exporters of garments are leather goods and unfulfilments of export allegation. The same had been transferred to the appellants on fulfilment of export obligations. The said transfer was duly authorised by the appropriate authority i.e. DGFT. In the absence of any allegation regarding forgery are falsification of the said licence or transfer of such licence, it is to be presumed that the appropriate authority i.e. DGFT had satisfied themselves about the fulfilment of condition of the Notification No. 203/92-Cus. by the exporter. Any way onus to prove that input stage credit was not availed in respect of the goods exported is not certainly on the "transferee" the licence i.e. appellants. We find that the ratio of cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that original manufacturer exporter had not availed the Modvat credit, is a far fetched proposition well neigh impossible act. The Apex Court in the case of Auto Ignition Ltd. (supra) had an occasion to consider similar issue wherein in Para 9 their Lordships held as under : "We agree with the view taken by the Tribunal that in the absence of any such proof, demand raised by issuing the show cause notices cannot be sustained. Moreover, the onus to prove that the assessee had availed of the Modvat credit was on the Revenue. Accordingly, we do not find any error in the impugned order of the Tribunal and consequently do not find any merit in these appeals. The appeals are therefore, dismissed leaving the parties to bear their own costs. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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