9911796707
TMI Blog2020 (1) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional officer of the Appellant unit in terms of Rule 3 of Cenvat Credit Rules 2004. Hon ble Supreme Court in case of OMKAR OVERSEAS LTD. VERSUS UNION OF INDIA [ 2003 (8) TMI 45 - SUPREME COURT ] has held that if there is any short payment, the benefit of rebate cannot be denied unless and until the same is by reason of fraud, collusion or wilful statement or suppression of fact. It has been not been brought on record in the impugned order that the Appellant has committed any fraud while obtaining the export goods from their supplier on payment of Central Excise duty in terms of Section 4 A of the Act. Rule 18 of the Central Excise Rules has been made to neutralise the duty incidence for export goods and ensure that the product remains expected in competitive foreign market. The purpose of said rule is to return the amount of duty that was paid by the exporter while exporting the goods outside India - the Appellant has not overvalued the exported goods at their end and the impugned order is, therefore, not sustainable. The appellant is entitled for the rebate at the declared price for the export made by it. Appeal allowed - decided in favor of appellant. - Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 1,04,36,946/- and ₹ 52,18,478/-. Following the due process of law the Appellant was granted rebate of ₹ 36,23,612/- and remaining amounts were disallowed by the impugned order. 3. Learned Advocate on behalf of the Appellant submits that the duty has been paid by the Appellant as per value declared by manufacturer/ supplier and realised full export proceeds from the overseas buyer. And in such a circumstance denial of rebate under Rule 18 of the Act is patently illegal. (i) It is submitted by learned Advocate that even if there is over valuation by the manufacturer/supplier benefit cannot be denied to the appellant unless it is by the reason of fraud, collusion or wilful mis-statement or suppression of facts placing reliance on the decision of Hon ble Supreme Court in case of Omkar Overseas Limited vs. Union of India reported in 2003 (156) ELT 167. It is also submitted that the factum of export by the Appellant is not disputed by the Department and Appellant has received foreign exchange as per price agreement with foreign buyers and hence there is no reason to discard the transaction value under the provisions of Section 14 of Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is as under; 21. It is alleged that Ektara Export Pvt Ltd. the Noticee No. as one of the exporters tried to get the value undue benefit of Central Excise duty rebate under Rule 18 of the Central Excise Rules, 2002 by means of exporting the product i.e. Mouth Freshener after purchasing the same from the manufacturing unit of M/s Vishal Distributors during the period 2008-09 (In March, 2009) and 2009-10 (In May, 2009). I find that the said Noticee No.7 had purchased the Mouth Freshener from the Noticee No. 4 (Manufacturing unit) on a highly inflated assessable value in comparison to the actual transaction value as was evident from the Central Excise Invoices and the corresponding Tax Invoices issued by the Noticee No. 4 in this regard. The Central Excise Invoices issued in this regard by the Noticee No. 4, the total assessable value was found to be 18,99,92,952/- (Rupees Eighteen Ninety Nine Lakh Ninety Two Thousand Nine Hundred Fifty Two Only) and against this, the total transaction value was shown as 4,39,75,872/-(Rupees Four Crore Thirty Nine Lakh Seventy Five Thousand Eight Hundred Seventy Two Only) in the respective tax Invoices, which were meant for Sales Tax pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Noticee No.2. However, the Noticee No. 7 had provided interest free loan to M/s Atrishay Pure Products, the Noticee No. 2 as the partner of Noticee No. 2 had family relationship with the Directors of the Noticee No. 7. 21.7 That the Noticee No. 7 had no idea of any agreement between the Noticee No. 4 and the Noticee No. 1 or between the Noticee No. 4 and the Noticee No. 2 in respect of sale of products of the Noticee No. 1 and the Noticee No. 2 by the Noticee No. 4 as agent. 21.8 I find that Ektara Export Pvt. had intentionally purchased artificially high MRP valued goods (though the actual transaction value was much lower) for export and claimed excess duty rebate in violation of Rule 18 of CE Rules, 2002. 21.9 I have gone through the submissions made by the Noticee No 7 in their reply to the Show Cause Notice and during the course of personal hearing but I do not find any force in their submissions as they could not given any evidence to justify the same. The investigation, however, has been able to justify the charges against the Noticee No. 7 by adducing adequate evidence. 21.10 I, therefore, fully agree with the investigation that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed without any legal basis under Central Excise Act and Rules. The Department has not been able to prove that the Appellant has, in any way, purchased the goods by suppressing any relevant information with the Department. The Department has reduced the value of export goods in an arbitrary manner by adopting the assessable value, which was declared by the supplier before the Commercial Tax Department. The Appellant was not concerned with the price that was declared by the supplier of the goods to the Commercial Tax Department. There is no evidence that the manufacturer/supplier and Appellant has any relationship so as to influence the prices declared for the export goods. We find that the Department was paid central excise duty on the price declared by the manufacturer/supplier and the Appellant has taken credit of the same and exported the product under the provisions of Rule 18 of Central Excise Rules. In the circumstances it will not be appropriate to ask the Appellant not to avail the rebate of the duty paid by it under the provisions of Rule 18 of the Central Excise Rules. 8. We also find that the assessment has been completed by the Departmental officer at the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods from their supplier on payment of Central Excise duty in terms of Section 4 A of the Act. In the said decision the Hon ble Supreme Court has held as under: 3. The appellants bought 100% cotton fabrics from one M/s. Gopi Synthetics and then exported the said fabrics. The appellants claimed rebate under Notification No. 29/96-C.E. (N.T.), dated 3rd September, 1996 on the footing that duty had been paid by the manufacturer i.e. M/s. Gopi Synthetics. This rebate was denied on the ground that duty had been short paid by M/s. Gopi Synthetics inasmuch as they had availed of 60% deemed Modvat credit whereas they were only entitled to avail credit @ 50%. For this short payment of duty, a show cause notice was issued to M/s. Gopi Synthetics. After receipt of the show cause notice M/s. Gopi Synthetics paid up the 10% duty which had been short paid. They then appealed against penalty which had been levied on them. The Commissioner (Appeals) waived penalty on the ground that short payment was not by reason of any fraud, collusion or any wilful mis-statement or suppression of facts. The appeal filed by the Department against that order was dismissed on the ground of non-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Based on the investigations, show cause notice was issued alleging that the value declared by respondents for export was inflated with a view to take the advantage of DEPB schemes. It was observed that the software in the CD- ROMs were otherwise freely downloadable from the internet. According to the Department, fair value of the CDROMs, after considering all incidental costs, should have been much lower. 3. The show cause notice was adjudicated upon by the Commissioner who vide Order-in-Original dated 27-3-2000 dropped the proceedings and held that there had been no contravention of the provisions of Customs Act. 4. Aggrieved, the Department appealed to the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ). 5. The CESTAT has allowed the appeal vide impugned decision dated 18-8-2006 [2006 (203) E.L.T. 120 (Tri.- Mum.)] accepting the case of the respondent-assessee, meaning thereby, the price of ₹ 640/- as declared by the assessee is found to be genuine. A perusal of the order reveals that the CESTAT has noted that the respondents purchased the CD ROMs from the local market directly from the manufacturer. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
