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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 ..... iate authority i.e. DGFT had satisfied themselves about the fulfilment of condition of the N/N. 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 - appeal allowed - decided in favor of appellant. - APPEAL NO. C/240/2012 - A/88014/2018 - Dated:- 30-11-2018 - SHRI S.K. MOHANTY, MEMBER (JUDICIAL) And SHRI P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Pooja Reddy, Advocate for Appellant Shri Manoj Kumar, Assistant Commissioner (A.R.) for Respondent ORDER Per: P. Anjani Kumar This appeal is directed against Order-in-Original No. 06/2011- 12/CAC/CC(EP)/AK/GR.VII dated 20.02.2012 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is from various exporters and transferability was endorsed by the licensing authority. Therefore the onus of proving non-availment of CENVAT credit was on the transferor and not on the appellant as a transferee . They have submitted to the Adjudicating Authority s letters issued by various jurisdictions of Central Excise Authorities certifying that:- (i) Export of exempted from licensing control in terms of Notification No. 13/92-(NT) dated 14.05.1992 read with Notification No. 01/93 dated 01.03.1993. (ii) They are not availing the relevant MODVAT credit under the Central Excise Rules in terms of Modification No. 17/95. (iii) They are not availing the MODVAT credit under the Central Excise Rules, 191A, 191B, 57A, 12(1) and 13(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms (Imports). Bombay Vs. HICO Enterprises - [2008 (228) ELT 161 (SC)] (ii) C.J. Shah Co. Vs. Commissioner of Customs (EP), Mumbai [2017 (347) ELT 168 (Tri.-Mumbai)] (iii) HICO Enterprises Vs. Commissioner of Customs, Mumbai - [2005 (189) ELT 135 (Tri.-LB)] (iv) Commissioner of Customs Vs. Auto Ignition Ltd. [2008 (226) ELT 14 (SC)] 4. Learned Authorised Representative for the Department has reiterated the finding of the Order-in-Original and has submitted that learned Commissioner has rightly observed that the certificates produced by the appellants are not applicable in as much as they were either incomplete or pertained to a different period. 5. Heard both sides and perused the case records. 6. The brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licenses were forged. The licenses were produced by the appellant before the authorities in 1994 while clearing the goods imported and claimed the exemption as per the licenses. It is a case of the Revenue that the appellant is ineligible to avail the benefit of Notification No. 203/92 as they could have availed the Modvat credit on inputs in respect of the materials exported for procuring the advance licenses. While it is a case of the appellant that there is no evidence shown that the original licence holder who was a manufacturer exporter had availed Modvat credit. 8. In our considered view, learned Counsel was correct in bringing to out notice that the allegations in the show cause notice are that the appellant had availed the Mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate that the appellant had availed Modvat credit on the inputs in order to deny the benefit of Notification No. 203/92, dated 19-5-1992. 10. In view of the above factual position, we find that the impugned order is unsustainable. 6.2 We also find that Hon'ble Supreme Court in the case of M/s HICO Enterprises (supra) has upheld the view of the Tribunal that transferee cannot be called upon to fulfil the condition (v)(a) of Notification No. 203/92-Cus. It is original licensee who has to satisfy the above refer condition, but not the transferee of the licensee. 6.3 In view of the facts of the case, ratio of the judgements cited above, we find that the appeal survives on merits and requires to be allowed. 7. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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