Full Judgment
Commissioner rejected this claim on 6-9-96 on the ground that the appellants company themselves did not make any export and that the exports were made under claim for duty draw back by M/s. Mohan Exports (India) Ltd., who are the merchant exporters. Being aggrieved, the appellants approached the Commissioner (Appeals) on the ground of misinterpretation of Rules who observed that, from the Shipping Bill submitted by them as proof of export, it was noticed that the goods in question were exported by one M/s. Mohan Exports (India) Ltd., New Delhi, and under the claim of duty drawback. The Commissioner (Appeals) relied upon the decision of this Tribunal in the case of CCE v. Gavs Laboratories Pvt. Ltd. Tribunal that from the Shipping Bills and the agreement it was evident that goods were actually exported by UIL. The goods although manufactured and cleared under bond by respondents, were actually sold by the Respondents within India to UIL. Since the goods are actually exported by the UIL, the Respondents were not eligible for Modvat credit in terms of Rule 57-I. The Commissioner (Appeals), therefore, concluded that appellants would not be entitled to refund. Further, it was observed that in terms of Board's Circular No. 220/54/96-CX, dated 4-6-96, refund of Modvat credit under Rule 57F(4) can be allowed only if the manufacturer was not able to utilize the. credit of duty allowed under Rule 57A against the goods exported during the quarter/month to which it related.
2. Being aggrieved, the appellants have approached this Tribunal.
During the hearing today, the contention of learned Advocate is that in the AR-4 filed by them, even the shipping bill's number had been given showing the linkage of the goods with the export goods. After reiterating the grounds of appeal, the learned Advocate relies upon the following decisions of the Tribunal:Shreenath Chemical Indus v. CCE, Vadodam 2002 (150) E.L.T. 299 (T). In this case, it was held that the manufacturer availing Modvat can not be held responsible for exports made by merchant exporter to benefit available to such Merchant Exporters.CCE, New Delhi v. Bhayana Electronics Indus. (P) Ltd. . In this case, it has been held that Rule 57F(3) of the Central Excise Rules, 1944 requires only export of goods and once such export is established manufacturer is entitled to refund of Modvat credit.CCE, New Delhi v. Guvs Laboratories (P) Ltd. , to support his contention. In this case, it was found that the goods were actually exported by Usha Intercontinental and were so shipped in their name as per the shipping bill and the terms of the contract. Further, the goods, although manufactured and cleared under Bond by M/s. Gavs Laboratories, were actually sold by them within India to M/s. Usha Intercontinental. Therefore, it was held that the former were only the manufacturers (and not the exporters) of the goods.
4. The learned JDR also points out the declaration as contained in Form-A under Notification No. 85/87 under which refund was claimed in this case. The declaration filed by the party under this proforma reads as follows : We declare that no separate claim for rebate of duties in respect of excisable materials used in the manufacture of the goods covered by this application has been or will be made under the Customs and Central Excise Duties (Drawback) Rules, 1971, or under claim for rebate under Rule 21A of the Central Excise Rules, 1944.
5. The learned advocate for the appellants points out that the appellants had given the declaration that no drawback was claimed by them. Further, he also points out that the drawback rules quoted here pertains to Central Excise Duties (Drawback) Rules, 1971, whereas in the material time, these rules had been substituted by Customs and Central Excise Duties (Drawback) Rules, 1995. According to him, nowhere in the new Drawback Rules, there has been a condition that no Modvat credit could be availed by the manufacturer. The learned JDR argues that the question of refund comes only when the manufacturer is unable to use the credit accrued to him.
6. The contents of the Proviso under Rule 57F(4) are brought into the center-stage of his arguments. The said Proviso reads as thus : Provided further that no such refund of credit of duty shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties (Drawback) Rules, 1971, or claims rebate of duty under Rule 12A, in respect of such duty.
7. The learned Advocate sticks to his stand. According to him, the said Proviso is applicable only in respect of the drawback claims made by the manufacturer and in this case they have not made any drawback claim and if someone else had made Such claim, it is not their concern. He distinguishes the provisions under the Drawback Rules, 1971 from those under Drawback Rules, 1995, which were the Rules prevalent at the material time. The learned JDR points out that conceptually the provisions under Drawback Rules are one and the same irrespective of the morphological changes being highlighted by the appellants.
8. I have carefully examined the case record and heard both sides.
Accordingly, the merchant exporters have already claimed drawback, from the Department in respect of the export consignments for which refund application was made by the appellants. 1 find that the case relating to Bhayana Electronics Indus. (P) Ltd., supra, relied upon by the appellants, does not offer any crutch to them as it relates to Modvat credit on goods exported under bond by merchant exporters, which is not the issue here. On the very same reasons, the case relating to Shreenath Chemical Indus v. CCE, Vadodam, supra, also does not beef up the appellant's contention. What has emerged is that, in respect of one and the same consignment, the appellants are seeking refund, whereas the merchant exporter has also filed a drawback shipping bill. Such a claim by the appellants cannot be entertained in terms of the Tribunal's Order in CCE v. Cavs Labs. Pvt. Ltd., 9. In the facts and circumstances of the case, I do not find any reason to interfere with the impugned order.