Pradeep Jain - Chartered Accountant

PJ/Case Laws/2009-10/30

Case Laws

Prepared by: - CA. Pradeep Jain

Megha Jain

And Deepak Mohnot

Central Excise Section:

Case: - Pioneer Magnesia Works Ltd v/s CCE, Ahmedabad-II

Citation: - 2009 (95) RLT 801 (CESTAT-Ahmd.)

Issue: - Whether H Form issued by the Sales Tax Department is sufficient evidence of export of goods?

Brief Facts: - Appellant is a SSI unit availing the benefit of Small Scale Exemption under Notification No. 08/2003-CE dated 01.03.2008. The said Notification grants unconditional exemption to the first clearance of 150 Lakhs. It is also provided therein that the exports made by an assessee are not required to be included in computing the clearance value of 150 Lakhs. Appellant have produced ‘H Form’ issued by the sales tax department in support of their contention that the Magnesia Chloride manufactured by them stands exported.

Respondent’s Contentions: - Since the procedure under Central Excise Rules has not been followed by the appellants and no intimation about the export of the goods was given by them, the benefit of the export cannot be extended to them. Accordingly, when such quantities is taken into consideration for computing aggregate clearances, they exceeds the amount of Rs. 150 Lakhs and as such, they required to pay duty on the excess clearances.

Reasoning of Judgment: - Tribunal has relied upon the Board Circular No. 648/39/2002-CX, dated 25.7.2002 [reported in 2002 (51) RLT M118] wherein it is clarified that H Form issued by the Sales Tax Department was sufficient evidence of export of goods. It was held that the export procedure for the exempted units stand simplified and document in the shape of ‘H Form’ have been held to be acceptable for establishing the export. The objection raised by the Revenue is in the nature of procedural contravention and the factum of issuance of ‘H Form’ by the Sales Tax department has not been doubted or rebutted. Moreover, there is no procedure of intimating the Revenue about such exports within a period of 24 hours or six months prescribed in the said Circular. Such exports actually stands made by the assessee, in which case their value is not required to be taken into consideration for arriving at the aggregate clearance of Rs 1.5 Crores. Thus, the clearances do not exceed the exemption limit. As a result, demand of duty cannot be confirmed against the appellants. Impugned order is accordingly set aside.

Decision: - Appeal allowed with consequential relief. Stay petition also disposed off.

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Case: - Noble Grain India Pvt. Ltd V/s CCE, Indore

Citation: - 2009 (95) RLT 864 (CESTAT-Del.)

Issue: - Whether the manufacturer is entitled to refund of the credit of service tax on input services used in exempted exported goods?

Brief Facts: - Appellants are engaged in the manufacture of Soya Oil which is exempted under Notification No. 3/2006 dated 1.3.2006 and De-Oiled Cake chargeable to nil rate of duty. They have been exporting De-Oiled Cake under Bond. They filed refund claim of Cenvat credit on input service i.e. GTA service, Insurance, Brokerage service, and Travel Agency service under Rule 5 of Cenvat Credit Rules, 2004. Refund claim was rejected by the Original Authority. Appeal filed against the said decision was rejected by the Commissioner (A). Hence, appellant filed this appeal before the Tribunal.

Appellant’s Contentions: - Appellant submits that the goods were cleared under bond and there is no dispute that the goods were exported and, therefore, unutilized credit would be refunded under Rule 5 of Cenvat Credit Rules, 2004. Appellant submit that in an identical situation the Hon’ble Bombay High Court in the case of Repro India Ltd. Vs. UOI & Anr [2008 (88) RLT 461 (Bom)] had allowed the refund of unutilized Cenvat credit even on the exempted goods or goods chargeable to nil rate of duty, exported under bond. Reliance was also placed upon the decisions in the case of CCE, Chandigarh vs. Drish Shoes Ltd. [2009 (90) RLT 686 (CESTAT-Del.)], Punjab Stainless Steel Industries vs. CCE, Delhi-I [2008 (86) RLT 377 (CESTAT-Del.)] and in CCE, Delhi-I vs. Punjab Stainless Steel [2009 (234) ELT 605 (Del.)].

Respondent’s Contentions: - Respondent reiterated the findings of the Commissioner (Appeals). The Commissioner (A) had in detail discussed the change of Cenvat Credit Rules, 2002 and Cenvat Credit Rules, 2004, whereby refund of unutilized credit under Rule 5 of Cenvat Credit Rules, 2004 was restricted. Also submits that the case law relied upon by the learned Advocate in the case of Repro India would not apply in the present case. It is his contention that in the case of Repro India (Supra) the assessee was manufacturing dutiable and exempted goods but, in the present case the appellants are manufacturing only exempted goods.

Reasoning of Judgment: - The Tribunal held that the appellants exported De-Oiled Cake which is chargeable to nil rate of duty. The Tribunal held that the issue that whether Rule 5 was applicable in the context of manufacture of dutiable and exempted goods has already been decided by the Hon’ble Bombay High Court in the case of Repro India Ltd. (Supra). In the said case the assessee was engaged in the manufacture of printed books which were chargeable to nil rate of duty. The assessee exported printed books entirely and claimed refund of unutilized credit under Rule 5 of Cenvat Credit Rules, which was allowed.

Further, the Tribunal held that in the Repro India Ltd case, it has already been observed that Rule 6(6) of Cenvat Credit Rules uses the expression “excisable goods” in order to widen and cover both dutiable and exempted goods exported under bond. Further, it was noticed that in the case of Punjab Stainless Steel Industries the assessee exported stainless steel utensils exempted from payment of duty and claimed refund of duty paid on inputs used in exported goods. The Tribunal had held therein that the manufacturer is entitled to refund of the credit of inputs used in exported goods, which was upheld by the Hon’ble High Court. Accordingly, it is concluded that appellant are entitled to refund of cenvat credit of inputs used in exported goods. Impugned order being not sustainable is set aside.

Decision: - Appeal allowed with consequential reliefs.

Comments: - This is very good decision which has allowed the refund of credit on fully exempted goods.

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Case: - Kundan Pestichem Pvt. Ltd. v/s CCE, Ahmedabad

Citation: - 2009 (95) RLT 503 (CESTAT-Ahmd.)

Issue: - Whether the interest amount, against which the rebate claim stands adjusted, is liable to be paid by the assessee or not?

Brief Facts: - Appellants have preferred a rebate claim in respect of the goods exported by them. The said rebate claim was sanctioned by the Assistant Commissioner but adjusted against an outstanding amount, which according to the Assistant Commissioner, was pending as interest amount in respect of some earlier confirmed demand.

Earlier, two orders were passed by the Additional Commissioner confirming the demand of duty. While confirming the demand, on the ground that the duty was required to be discharged in cash and not by making debit entries in cenvat credit account, the Original Adjudicating Authority had also observed that interest is to be recovered from the assessee on the delayed demand at prescribed rates under Section 11AB. The appellant had challenged the said orders before the Commissioner (A) but the said appeal was rejected. Thereafter, no appeal was filed by the appellants against the said order of the Commissioner (A).

Appellant’s Contentions: - Appellants contention is that the interest was required to be paid, even in terms of the said order, under Section 11AB. No amount of interest was quantified or finalized in the said order. In terms of the provisions of Section 11AB, the interest required to be paid by them is nil, as held by the Larger Bench in the case of Noble Drugs Limited vs. CCE, Nasik [2007 (87) RLT 810 (CESTAT-LB)] laying down that payment of duty from the modvat credit account during the period of forfeiture would not attract any interest in terms of Section 11AB.

It is contended that even if the orders of the lower authorities are held to be final order, the same are only to the effect that interest in terms of section 11AB is to be confirmed. As per the law declared by the Larger Bench the interest in terms of the said section would be Nil. Thus, there is no interest liability against them and the adjustment made by the Revenue was not justified.

Respondent’s Contentions: - Revenue argued that having not filed any appeal against the order of the appellate authority, the appellant is under a liability to pay the interest.

Reasoning of Judgment: - The Tribunal held that there is no dispute about the fact that in terms of the law declared by the Larger Bench in the case of Noble Drugs Limited, no interest is required to be paid where duties actually paid from the modvat credit account instead of paying in cash. The only factor which is coming in the way of the appellant is that they have not filed an appeal before the Higher Forum.

Tribunal found that the said orders do not confirm any quantum of interest and the same are to the effect that interest under Section 11AB is to be paid. If the said orders are examined in the light of the judgment of the Larger Bench, then what transpires is that no interest is required to be confirmed in terms of section 11AB. Thus, it is concluded that the interest required to be paid was nil. Thus, the rebate claim sanctioned is required to be refunded instead of adjusting the same against the interest amount. Impugned order set aside.

Decision: - Appeal Allowed. Stay petition also disposed off.

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Case: - M/s Andhra Sugars Ltd v/s Commissioner of Central Excise, Guntur, vice versa

Citation: - 2010-TIOL-181-CESTAT-BANG

Issue: - Whether refund of duty of short receipt of material at buyer’s address is admissible when the difference in weight is due to difference in weighing scale?

Brief Facts: - Appellants-assessee are manufacturers of Caustic Soda, Caustic Potash, Sulphuric Acid, Liquid Chlorine, Hydrochloric Acid etc., falling under Chapter sub-heading No.2815 of the Central Excise Act, 1985. The Assessee have claimed refund on the ground that the central excise duty paid by them was incorrect due to variance in the weighbridge at the purchaser’s end and thus they being 1^st stage dealer simply passed on the Central Excise duty on pro rata basis.

As refund was not admissible on account of short receipt of goods by their customers due to variance in the weighbridge, SCNs were issued to the appellants requiring them to explain as to why the said refund claim should not be rejected under Section 12B of the Central Excise Act and as to why the said refund claim filed should not be treated as not maintainable under the provisions of Section 11B. The Adjudicating Authority rejected the refund claim filed by the assessee. Aggrieved by such an order, the assessee preferred an appeal to the Commissioner (Appeals). Thus, the appellant are in appeal. While in another Appeal, the Commissioner (Appeals) has set aside the OIO so revenue is in appeal.

Appellant’s Contentions: - The appellant-assessee had cleared the goods on payment of excise duty on the quantity of goods as ascertained on their weigh bridge. When the said goods are transported or shipped to their purchasers, the weigh bridge at purchaser pays the appellant the value of the goods as per the weight which is ascertained in their factory premises. They had received the value of the goods and corresponding excise duty and education cess as arrived at by purchaser for the quantity ascertained at their weigh bridges. Appellants have also drawn attention to the certificate issued by the Superintendent of Central Excise attached to purchaser indicating that the purchaser had filed cenvat credit of the excise duty that is proportionate to the quantity received by the purchaser. It is also submitted that since there is excess payment of excise duty, the appellant/assessee is eligible for the refund of the same.

Assessee has relied upon the decision of the Tribunal in the case of Estee Auto Pressings Pvt Ltd. Vs CCE [2007 (209) ELT 211 (T)]. Assessee has also submitted that the fact that the purchaser has received the quantity short is not disputed by the revenue in their impugned orders.

Respondent’s Contentions: - Revenue contended that weight of the goods at the purchasers end is not material for discharge of excise duty liability. It is submitted that it is not the case that where there is a loss of the goods during transit. The amount paid by the appellant at the time of removal from the 1^st stage dealer is not in excess as Weight Bridge of the appellant factory indicated that weight. Therefore the refund claims which has been rejected by the adjudicating authority is correct and the said order should be upheld.

Reasoning of Judgment: - The Tribunal held that there is no dispute that the receipt of the quantity by the purchaser (M/s NALCO) as indicated by them is the correct quantity received at their factory. The appellant assessee has paid central excise duty and education cess against the quantities of goods cleared to M/s NALCO. If M/s. NALCO has received the quantity short, the shortage indicated is being less than 1% or about 1% over a period of 7 months, it cannot be said that the refund claim is not maintainable under Provisions of Section 11B of Central Excise Act, 1944. The difference between the quantity cleared and the quantity received is not substantial. It is also on record that the purchasers i.e. M/s. NALCO had paid the appellant assessee only the value of the quantity of the goods received in their factory and it is on record and undisputed by the Revenue that M/s Nalco had taken cenvat credit of the duty only to that extent of the goods which were received by them. It would appear that the shortages which were noticed by M/s. NALCO are genuine and duty of excise paid by the assessee is definitely an excess duty which is not liable to be paid by him. It is also seen that the amount of refund claimed by the appellant assessee is not passed on to the customer. The Tribunal held that if that be so, then appellant assessee is eligible for the refund of the amount claimed by them on the quantity which were received short by their customers.

Decision: - Assessee's appeal allowed and appeal filed by Revenue rejected.

Comments: - Normally, the assessee receives the short supply of goods and takes the lesser credit. Thus, the refund will be granted to supplier of goods. Moreover, in a recent larger bench decision the credit is allowed in full on short supply of material if the short supply is due to genuine grounds. This is also very good decision.

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Case: - Commissioner of C. Ex., Chandigarh v/s Saboo Alloys Pvt. Ltd

Citation: - 2010 (249) E.L.T. 519 (H.P.)

Issue: - There is no need of reversal of Cenvat credit when the final product is subsequently exempted.

Brief Facts: - Respondent-assessee is engaged in the manufacture of SS Ingots/Flats. They were obtaining cenvat credit on the inputs used in the manufacture of final product. On 11.04.2005 the respondents opted for benefit of the Exemption Notification No. 50/2003-CE, dated 10.06.2003 and thereafter the final product was exempt from excise. A large amount was lying as modvat credit in respondent’s accounts was reversed. Respondent filed a claim for refund of the amount reversed on the ground that it was not required to reverse the benefit of modvat credit taken by it on the inputs purchased prior to its opting to take benefit of the exemption notification. Refund claim was rejected by the Assessing Officer. Respondent filed an appeal and the same was allowed. Revenue filed an appeal before the Tribunal against the said order. Tribunal dismissed the appeal in view of the law laid down by a 5 member Bench in CCE, Rajkot v/s Ashok Iron & Steel Fabricators [2002 (140) ELT 277 (Tri-LB)]. Revenue has come before the High Court against the order of the Tribunal.

Appellant’s Contention: - Revenue argued that in Ashok Iron & Steel Fabricators case, the Tribunal held that there was no rule which permitted the department to seek the reversal of the modvat credit. He relies upon the Rule 9(2) of the Cenvat Credit Rules and contends that the said Rule was not taken into consideration.

Reasoning of Judgment: - The Tribunal considered the judgment of the Apex Court in Collector of Central Excise, Pune and Other v/s Dai Karkaria Ltd and other [1999 (112) ELT 353 (SC)] wherein a similar question relating to the reversal of Modvat credit under Rule 57H(5)Central Excise Rules,1944 was considered. It was held therein that the credit that has been validly taken, and its benefit is available to the manufacture without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is therefore, indefeasible.

Further, the Tribunal held that the language of the Rule 57H (5) of the Central Excise Rule and Rule 9(2) of the Cenvat Credit Rules is identical; therefore the decision also has to be similar. The Tribunal also relied upon the judgment of Kerala High Court in Collector of Central Excise and Custom, Cochin v/s Premier Tyres Ltd [2001 (130) ELT 417 (Ker)] in which the High court followed the judgment of the Apex Court Decision and held in favour of assessee on a similar question. The Tribunal also noted that the judgment given in Ashok Iron and Steel Fabricators’ case was upheld by the High Court of Rajasthan in Hindustan Zinc Ltd v/s Union of India [2008 (223) ELT 149 (Raj)].

The Tribunal held that since the language of Rule 9(2) of the Cenvat Credit Rules is identical to that of Rule 57H (5) of the Central Excise Rules, the interpretation given by the Apex Court has to be applied in the present case also and therefore even though the final product may be exempt from payment of excise, the assessee cannot be asked to reverse the Modvat already taken by it. Question answered in favour of assessee and against the revenue.

Decision: - Appeal dismissed accordingly.

Comments: - The refund is granted in this case when the reversal of cenvat credit has been done. This decision will have far reaching effect.

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Service Tax Section:

Case: - Pierlite India Pvt. Ltd. v/s Commissioner of C. Ex, Ahmedabad

Citation: - 2010 (17) STR 237 (Tri. Ahmd)

Issue: - There is no time limit of taking credit.

Brief Facts: - The appellants took the credit of the service tax paid by the job worker in Nov. 2006, whereas the service tax had been paid during the period of Jan ’05 to Oct ’05. In October ’08, a SCN was issued by the revenue to recover the credit of service tax take by the appellant on the ground that the same was taken after more than one year which is unreasonable for taking the credit according to revenue and proposed recovery of the credit taken along with interest. After adjudication process, demand with interest as applicable was confirmed and penalty equal to the service tax credit taken was also imposed.

Appellant’s Contentions: - Appellants have contended that there is no time limit for taking the credit. They have relied upon the judgments given in M/s Coromandel Fertilizers Ltd. v. CCE (A), Vishakhapatnam [2009 (239) ELT 99 (Tri. Bang.)] and in Tribunal’s Order No. A/123/WZB/Ah’bad/06 dated 01.11.06 [2007 (210) ELT 124 (Tribunal)]. Appellant’s have also relied upon Para 3.5 of the CBEC Manual which provides that Cenvat Credit may be taken immediately on receipt of the inputs in the factory. However, this does not mean nor it is even intended that if the manufacturer does not take the credit as soon as the inputs are received in the factory, he would be denied the benefit of it. Further, in Nov. ’06, at the time of taking credit, all details of the transactions were given and the department had intimated that they are taking credit. Even then, a SCN was issued only in Oct ’08

Respondent’s Contentions: - Revenue contended that even though the Rule does not prescribe the time limit for availment of Cenvat Credit, yet it is required to be taken within a reasonable period. Revenue relied upon the judgments given in M/s J. V. Strips Ltd. v. CCE, Rohtak [2007 (218) ELT 252 (Tri. -Del.)] and CCE, Hydrabad v. M/s Mould-tek Technologies Ltd. [2008 (12) STR 532 (Tribunal)].

Reasoning of Judgment: - The Tribunal held that the very fact that the appellant had written a letter in Nov. ’06 immediately after taking the credit is sufficient for allowing the appeal since the suppression/ misdeclaration could not have been invoked in this case. The law requires suppression/ misdeclaration with intent to evade duty and the person who has an intention to evade duty would inform the department as soon as he takes the credit. On this ground only this appeal is required to be allowed. The judgments cited by the appellant covers this case and CBEC manual also supports the contention of the appellant. Therefore, on merit also, appellant have a strong case.

As regards to the cases cited by the respondent, the Tribunal held that they were single member decision whereas the decision cited by the appellant are division bench decision. It is also taken in the view that the decision of the Tribunal in the case of M/s Coromandel Fertilizers Ltd., was rendered on 26.08.08 whereas the decision of M/s J. V. Strips Ltd and M/s Mould-tek Technologies Ltd was rendered on 26.07.07 and 20.01.06 respectively. In view of this position, the decision cited by the respondents cannot be considered as binding. Appellant’s case is covered by precedents.

Decision: - Appeal is allowed with the consequential relief.

Comments: - This verdict is also helpful for taking the cenvat credit of service tax as most of assessee has not taken the same. The department was not agreeing to taking of such credit but the issue has been settled after the Coca cola landmark judgement.

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Case: - Java Impex (p) Ltd v/s Commissioner of Central Excise, Indore

Citation: - 2010 (10) STR 239 (Tri. Del)

Issue: - There is no service tax on reimbursement of expenses for C & F agent.

Brief Facts: - The appellants are providing C & F Agent Service. A show cause notice dated 15.05.05 was issued demanding tax and proposing to impose penalty along with interest. It was alleged that the reimbursement expenses should be treated as agency commission for the services rendered by the appellants and reimbursement commission should be included in the taxable value. It was submitted before the Adjudicating Authority by the appellants that they were incurring 17 types of expenses. The Commissioner allowed reimbursement expenses in respect of 15 items. He disallowed misc. expenses as misc. expenses of business (Railway) and modified the demand of duty and imposed equal penalty under Section 78 and imposed penalty under Section 76.

Appellant’s Contentions: - Appellants are not contesting the demand of duty which they have already deposited. It is contended that the Commissioner allowed reimbursement in respect of 15 items and also advised them in the impugned order to have written contract even though there is no statutory requirement for reimbursement of expenses. Appellant also relied upon the case of the Larger Bench of the Tribunal in the case of Amit Sales v. CCE, Jaipur [2009 (13) STR 165 (Tri-Del)]. Hence imposition of penalty was not warranted. And it is also submitted that in the fact and circumstances of the case Section 80 of the Act is applicable.

Respondent’s Contentions: - Respondent reiterates the findings of the Commissioner. They contend that the appellants suppressed the appropriate value of the taxable service. The appellants failed to disclose any evidence in support of the expenses of two items. So imposition of penalty is justified.

Reasoning of Judgment: - The Tribunal held that Reimbursement of expenses on C & F Agent Services are not taxable. The commissioner, after examining the document, allowed reimbursement of expenses on 15 items. It is observed by the commissioner that the demand should have been raised only after verifying the various documents obtained by the appellants for obtaining reimbursement. It is also observed that no such record is attached with SCN. It is seen that there is a contrary decision of the tribunal in respect of eligibility of reimbursement of expense in respect of various items and the matter was referred to the larger bench. Thus it is clear interpretation of provision of law. Imposition of penalty is not warranted. Demand of duty is upheld but penalty is set aside.

Decision: - Appeal disposed off in above terms.

Comments: - The same position is reiterated for custom house agent by the board in his recent circular that there is no need to pay service tax on reimbursement of expenses. But if some profit is added then the tax is to be paid.

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Case: - Commr. of C. Ex, Nagpur v/s Maharashtra State Road Transport Corp.

Citation: - 2010 (17) STR 248 (Tri. - Mumbai)

Issue: - There is no need to pay tax on running buses if the buses do not fall under the definition of tourist vehicle.

Brief Facts: - Demand for service tax was raised and confirmed in respect of contract carriages plying between cities in Maharashtra state and cities in other states. In appeal, the Commissioner (A) set aside the demand. Revenue has come in appeal against the said order. Revenue is seeking stay of the order of the Commissioner (A).

Reasoning of Judgment: - The Tribunal found that the Commissioner (A) has set aside the OIO on the ground that the respondents are not required to have any license for running buses and their buses do not confirm to the definition of Tourist vehicle in terms of Section 2(43) of the Motor Vehicle Act read with Rule 128 of the Central Motor Vehicle Rules. The Tribunal also relied upon the several decisions of the tribunal and the decision of the Hon’ble High Court of Madras to come to this conclusion. Thus, it was found that the Revenue has not been able to make a prima facie case in their favour to grant stay.

Decision: - Stay petitions are rejected.

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Case: - CCE, Visakhaptnam v/s Ex-servicemen Resettlement & Coordinate Cooperative Society Ltd

Citation: - 2009 (95) RLT 561 (CESTAT-Ban)

Issue: - When there is no willful suppression then penalty cannot be imposed. The penalty cannot be imposed when there is bonafide belief on the part of appellant.

Brief Facts: - The respondent is a cooperative society consisting of ex-servicemen who were providing the services of security agency. They had an agreement with M/s ONGC for rendering the security service to them. Respondent had not discharged the service tax liability. A show cause notice was issued to them on 02.12.99. Adjudicating Authority confirmed the demand of service tax for the period from 16.10.1998 to 31.06.1999 with interest. Penalty was imposed under Section 76 and penalty was imposed on the President. An additional OIO was passed wherein the penalty under Section 76 was replaced by penalty of Rs 100/- per day. The respondents approached the Commissioner (A). The Commissioner (A) set aside the penalties on the ground that there was no willful intention to evade payment of tax and delay in payment was due to delay in payment to them by M/s ONGC. Penalty imposed on the President was also set aside. Revenue has come in appeal against the said decision.

Appellant’s Contention: - Revenue contended that respondents had kept on arguing that they were not liable to pay and only after lapse of 2 and half years from the date of issue of notice, they have discharged their liability. This is not a case of lack of knowledge and understanding but a case of willful avoidance of tax basing on incorrect argument. They discharged their liability only when M/s ONGC paid them the amount. It is contended that the legal provision is that the service provider has to discharge his liability on his own without waiting for the realization of the sum from the service receiver. It is contended that the respondents belief that they could not pay the tax because there was delay in payment of the same by M/s ONGC is not legally sustainable.

Reasoning of Judgment: - The Tribunal held that the respondents were having a bona fide belief that during the relevant period only a commercial concern was required to discharge the service tax liability. The respondent being a cooperative society were of the view that there was no liability cast on them. That belief was also based on the advice given to them by M/s ONGC. This fact has been appreciated by the Commissioner (A) and he has used his discretion to set aside the penalty. It is a fact that the respondent had not paid service tax on a bona fide belief and also the said tax amount was not collected from M/s ONGC. Once M/s ONGC cleared this amount, they paid it. The Tribunal agreed with the Commissioner (A) that there was no willful intention on their part to evade service tax. No infirmity in the order of the Commissioner (A).

Decision: - Revenue’s appeal rejected.

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Customs Section:

Case: - Universal Exports (Bangalore) Ltd. v/s CCE, Chennai

Citation: - 2010 (249) ELT 360 (Tri. - Chennai)

Issue: - When the superintendent has certified that the same goods which was imported earlier has been exorted then there is no duty liability under notification 158/95.

Brief Facts: - Duty demand was confirmed against the appellants, the duty rate being the merit rate, without the benefit of exemption in terms of Notification no. 158/95-Cus. allowed on the re-importation of girls anoraks and boys anoraks on the ground that the assesses were not able to correlate what was initially exported to Germany and France which were reimported them and which were re–exported to the same countries.

Reasoning of Judgment: - The Tribunal held that the Superintendent of Customs, Bangalore had certified that 534 pieces of Girls Anoraks were re-imported by the appellants vide BOE dated 23.07.1997 and exported in October 1997 to Germany and certifying that boys Anoraks were initially exported to France were re imported vide BOE dated 17/97 and exported to France on 23.07.1998. This clearly establishes that the goods which were reimported by the assessee and were re–exported to Germany and France, although the word used in the certificate is exported in October 1997 and July 1998 and not re–exported. The certificate makes it clear that the goods which were imported were re exported to Germany and France, and therefore the benefit of notification claimed by the assessee is available to them. Impugned order set aside.

Decision: - Appeal allowed.

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