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TMI Blog2020 (11) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... mining the aggregate value of clearances under paragraph 2(vii). One such category under clause (b) of paragraph 3A is clearances bearing the brand name or trade name of another person that are ineligible for exemption in terms of paragraph 4. Thus, in terms of paragraph 3A(b) of the Notification, clearances bearing the brand name or trade name of another person are not includible in the aggregate value of clearances for paragraph 2(vii). There was no violation of the procedure by the appellant and in any case, procedural infraction, if any, cannot to be a ground to deny of substantive benefit of SSI exemption to the appellant. Extended period of limitation - HELD THAT:- As the benefit of SSI exemption could not have been denied to the appellant, it is not necessary to examine the contention advanced on behalf of the appellant that the extended period of limitation could not have been invoked. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 646 of 2008 - Final Order No.: 51580/2020 - Dated:- 29-9-2020 - HON BLE MR.JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri B.L. Narasimhan, Advocate for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the value was included, it would exceed the limit provided for in the aforesaid two Notifications. The Department, therefore, formed an opinion that the appellant was not eligible for the benefit of SSI exemption. 4. Accordingly, a show cause notice dated November 29, 2006 was issued to the appellant proposing to deny the benefit of SSI exemption and a demand for payment of central excise duty amounting to ₹ 1,63,46 331/- for the period from 2002-03 upto March 28, 2006 with interest was issued to the appellant. The show cause notice also proposed to impose penalty upon the appellant. The demand was raised by invoking the extended period of limitation under the proviso to section 11A (1) of the Excise Act. 5. A reply dated May 18, 2007 was filed by the appellant to the show cause notice. Additional submissions were also filed at the time of personal hearing on October 3, 2007. 6. The Commissioner, however, by order dated December 28, 2007 confirmed demand for the reason that the appellant had not cleared the goods for export directly from the unit itself, and, therefore, the procedure prescribed under the Circular dated July 25, 2002 was not followed by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Vs. Commissioner of Central Excise, Belapur 2018 (364) ELT 230 (Tri.-Mumbai) (f) Hare Krishna Boxes Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur 2011 (267) ELT 525 (Tri.-Mumbai) (vi) A substantative benefit cannot be denied due to procedural infractions, if any; (vi) The value of traded goods cannot be included in the aggregate value of clearances for the purpose of SSI exemption; (vi) Value of branded goods (printed material) cannot be included in the aggregate value of clearances for the purpose of SSI exemption; (ix) Even otherwise, if SSI exemption is held inadmissible, the appellant would be entitled to CENVAT credit on inputs/input services etc.; and (x) The extended period of limitation could not have been invoked and penalty was not imposable nor interest was recoverable. 9. Shri O.P Bisht learned Authorized Representative of the Department has, however, supported the impugned order and has submitted that it does not suffer from any infirmity so as to call so as to call for an interference in this appeal. 10. The submissions advanced by learned Counsel of the appellant and learned Authorized Representative of the Department have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, dated the 1st March, 2001, published in the Gazette of India vide number G.S.R 133(E), dated the 1st March, 2001, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below (hereinafter referred to as the said Table) for home consumption of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of the aggregate of,- (i) the duty of excise specified thereon in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and (ii) the special duty of excise specified thereon in the Second Schedule to the said Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the said Table: Provided that nothing contained in this notification shall apply to a manufacturer who has availed the exemption under notification No. 39/2001-Central Excise , dated the 31st July, 2001, published in the Gazette of India vide number G.S.R.565(E), dated the 31st July, 2001, in the same financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Circular issued by the Board has not been followed. It has been observed by the Commissioner that the benefit of simplified export procedure and acceptance of Form 'H' and Form ST-49 as proof of export is available only in respect of exempted units which undertake exports themselves or through merchant exporters directly from the unit itself. 19. It is not possible to accept this reasoning of the Commissioner. Certificates in Form 'H' and Form ST-49 have been accepted as proof of exports by the Circular dated July 25, 2002 issued by the Board. The relevant portion of the said Circular is reproduced below: 2. The matter has been examined by the Board. The Central Excise Manual provides that in the case of export by exempted units through merchant exporter, the documents prescribed by Sales Tax Department, viz H-Form or ST-XXII Form or any other equivalent Sales Tax form, will be accepted as proof of export. It is clarified that this facility is available only in respect of the exempted units which undertake exports themselves or through merchant exporters directly from the unit itself. The facility is not available for the supplies made to any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for exemption from payment of sales tax on the cartons sold to such customers. The Revenue has no case that the appellants did not obtain such exemption from payment of sales tax. This would mean that the Revenue has accepted the fact that the sale of 'printed cartons' by the appellants to the said customers was a sale in the course of export of the goods out of India. The above rule contemplated export of the goods by the purchaser. By no stretch of imagination can it be said that the above rule contemplated retention of possession of the goods by the dealer (appellants in the present case) for its direct exportation from their own premises by the buyer (M/s. A.V. Thomas Co. or other similar customer in this case). If the very physical export of the goods sold by the appellants to their customers is required to be made from the appellants' premises, why should the appellants be required to gather proof of export (in the form of Form-H certificate) from their customer ? We have perused a specimen Form-H certificate issued by M/s. A.V. Thomas Co. to the appellants. This document (No. 107 dt. 3.1.2005) certified as under: Certified that the goods the Particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhey Paper Udyog dt. 27.1.2005 was not accepted. Earlier decision to the same effect of the learned Single Member in the case of International Corrugators (supra) was also, apparently, accepted by the Revenue. (emphasis supplied) 22. The Gujarat High Court in Amar Packaging Industries held that the certificate in Form H certificate issued by the merchant exporter has to be accepted as proof of export and the requirement of the Circular dated July 25, 2002 stands substantially complied with. The relevant portion of the judgement is reproduced below: 5.2 The case of the department is based on the above circular and it is contended that conditions prescribed therein were not met with. It is clear that H form is not dispensed with as a document of proof of export. The acceptance of H form to prove and establish that the export has taken place is only clarified in the above circular. This facility will be available for the purpose of exemption in respect of exempted unit which undertake exports themselves or through merchant exporters directly. 5.3 It is an admitted position that the merchant exporters having issued H forms to the assessee, the proof of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clears the printed material for home consumption which do not bear any branded name. The appellant also manufactures printed material which bears the brand name of the buyers. In terms of paragraph 2(vii) of Notifications dated March 1, 2002 and March 1, 2003, one of the conditions for availing SSI exemption is that the aggregate value of clearances of all excisable goods for home consumption does not exceed ₹ 3 Crore (4 Crore w.e.f 01.04.2005) in the preceding financial year. In paragraph 3A, certain categories of clearances have been excluded for determining the aggregate value of clearances under paragraph 2(vii). One such category under clause (b) of paragraph 3A is clearances bearing the brand name or trade name of another person that are ineligible for exemption in terms of paragraph 4. Thus, in terms of paragraph 3A(b) of the Notification, clearances bearing the brand name or trade name of another person are not includible in the aggregate value of clearances for paragraph 2(vii). This is what was also held by the Tribunal in Commissioner of Central of Central Excise, Chennai Vs. Nebulae Health Care Ltd. 2015(325) ELT 431 (S.C) and British Health Products India Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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