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TMI Blog2023 (6) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned order is set aside - Appeal allowed. - EXCISE APPEAL No.41570 OF 2013 - FINAL ORDER No.40463/2023 - Dated:- 22-6-2023 - MS. SULEKHA BEEVI, MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Ms. Mane Vera Niveditha, Advocate For the Appellant Mr. R. Rajaraman, Assistant Commissioner (A.R) For the Respondent ORDER Brief facts are that the appellant is engaged in the manufacture of Magnesium Sulphate. During the verification of records by the department officers, it was found that the appellant had crossed the exemption limit of Rs.1 Crore during 2006-07 to 2007-08. The appellant had not discharged applicable duty even after crossing the threshold limit prescribed under Notification No.8/2003-CE dated 01.03.2003. Show cause notice dated 14.09.2011 was issued proposing to demand the duty along with interest and for imposing penalties. After dur process of law, the original authority confirmed the duty liability with interest and imposed penalty. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, Ld. Counsel Ms. Mane Vera Niveditha appeared and argued the matter. It is explained by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said goods in manufacture/packing of goods for export. Further, it has also been requested that the value of such clearances may be excluded from the total value of domestic clearances for the purpose of availing SSI exemption. 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 other domestic manufacturer who may or may not export its finished products. 6. The Tribunal in the case of Vadapalani Press Vs CCE Chennai (supra) had occasion to consider a similar issue. The above Board s circular was also referred by the Tribunal. It was held that when Form-H has been produced to establish that the goods have been exported the value of such clearances would not be included in the aggregate val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey can only be called merchant-exporters of the cartons. Thus both the conditions proposed by learned SDR were satisfied by the appellants. Hence, by ld. SDR s yardstick also, the appellants must be held to have established their case for acceptance of Form-H certificates as proof of export in respect of the printed cartons supplied by them to M/s. A.V. Thomas Co. and other similar customers during the period of dispute. It is ordered accordingly. 7 . As we have already noted, each certificate in Form-H has a Schedule thereto, which contains details of exports, such as particulars of Air Waybills. These details are found elaborately in tabular statements annexed to the certificate. It is for the Commissioner to verify these particulars of exports to satisfy himself that every consignment of printed cartons removed from the appellants factory under an invoice was exported by the buyer. For this purpose, the appellants shall be given an opportunity of adducing documentary evidence and of being personally heard. Ld. Commissioner shall examine such evidence along with other evidence already on record, consider the party s submissions and record fresh findings on the surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had discussed the Circular issued by the Board from time-to-time in detail. We find ourselves in respectful agreement with the reason adopted by the Tribunal in Vadapalani Press case in coming to the conclusion in favourt of the appellants in that case and accordingly, we allow the appeal filed by the appellants with consequential relief. 7. In light of foregoing reasons, the Tribunal has not committed any error in allowing the appeal of the assessee. It is rightly held that requirements of the circular were substantively complied with. Accordingly, the substantial question of law is answered in the negative and in favour of the assessee and it is held that the respondent-assesse is rightly held entitled to claim exemption. 8. The Tribunal in the case of Ramani Plastics Pvt. Ltd. Vs CCE Chennai (supra) has taken a similar view. Relevant paras read as under : 4 . We find that in appeal No. E/160/2005, the adjudicating authority, after considering the Board s circular, dated 25-7-2002, and Sales Tax H-Form or ST-XXII Form and the Chartered Accountant s certificate dropped the proceedings. The relevant portion of findings of the adjudicating authority in OIO, dated 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed sufficient material in the nature of H-Form or ST-XXII Form, Sales Tax Assessment Order as proof of export. There is no dispute that the Hangers were exported with garments by the merchant exporter. Thus, there is substantial compliance of the Board s circular. The Commissioner (Appeals) observed that there is procedural lapse in so far as the goods were not directly exported but through merchant exporter. The Board has clearly clarified that this facility is not available to the supplies made to any other domestic manufacturer who may or may not export its finished products. In the present case, it is observed from the record that the merchant exporter exported the goods which was not disputed at any point of time. 8 . In view of the above discussion, in Appeal No. E/1091/2005, we set aside the impugned orders and the appeal is allowed. In Appeal No. C/160/2005, the impugned order passed by the Commissioner (Appeals) is set aside and the adjudication order is restored. Both the appeals are allowed. 9. After appreciating the facts and evidence as well as decisions cited supra, we are of the considered opinion that the demand cannot sustain. The impugned order is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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