Commissioner Of Customs (Export) vs M/S. Stellar Chemical Lab. Pvt. Ltd

(Arising out of Order-in-Appeal No.99/2005 VL(ACC) dated 17.10.2005 passed by Commissioner of Customs (Appeals), Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

Commissioner of Customs (Export), Mumbai Appellant Vs.

M/s. Stellar Chemical Lab. Pvt. Ltd. Respondent

Appearance:

Shri M.K. Mall, Asst. Commissioner (AR) for appellant Shri Vijay Satam, Manager (Export) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of Hearing: 27.05.2015 Date of Decision: 27.05.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No.99/2005 VL(ACC) dated 17.10.2005.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding non-eligibility to avail exemption under Notification 203/92-Cus dated 19.05.1992 for the imports made against DEEC licence but was denied on the ground that the respondent has failed to produce proof regarding non-availment of MODVAT credit or reversal of MODVAT credit as envisaged in the DEEC Scheme.

4. On perusal of the records, we find that the first appellate authority while allowing the appeal filed by the respondent-assessee has recorded the following:-

I have carefully gone through the facts of the case as well as submission made by the counsel for the appellant. Keeping in view of the fact that appellant has produced a certificate from the C.A. stating that they had not availed any modvat credit in respect of the goods imported by them against bill of entry no. 0008639 dt. 24.1.1994 and also keeping in view the fact that they had submitted the original certificate issued by the Supdt. C.Ex. to the deptt. I find that appellant has complied with the non-fulfillment of notfn. the sole ground for confirmation of demand, so appeal is accepted. However, deptt. Is free to verify the correctness of the certificate issued by the C.A. from the concerned jurisdictional C.Ex.officer, if found incorrect they may initiate necessary recovery proceedings.

As against the above reproduced findings of the first appellate authority as to reliance on certificate issued by the C.A. as also on a letter of Supdt., in the Grounds of Appeal we find that this fact has not been contested by the department. We also find the first appellate authority has given liberty to verify the correctness of the certificate given by the C.A. on which there is no information from both sides. In our considered view, if the first appellate authority has relied upon the certificate issued by the C.A. and a letter of Supdt., to uphold the respondents contention that they have not availed CENVAT credit, nothing survives in this appeal as the same are not controverted. In the facts and circumstances of the case, we find that the impugned order is correct, legal and does not suffer from any infirmity.

5. Appeal filed by the Revenue is rejected. (Dictated in Court)

(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)

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