EURO EXPORTS Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) AFTER hearing both sides, we find that the appellant exported synthetic detergent powder manufactured by supporting manufacturer, M/s. Lucknow Gramudyog Sansthan, Lucknow under 20 different shipping bills during the period February, 1993 to July, 1993 and earned exemption for export of goods in terms of Notification No. 203/92 -Cus., dated 19 -5 -92. One of the condition of the said notification is that no input Modvat credit stands availed in respect of the exported goods. The appellant produced the certificate from the supporting manufacturer stating that no input stage credit has been availed by them, in as much as their unit is registered with Uttar Pradesh Khadi & Village Industries Board and they are eligible for exemption from payment of Central Excise in terms of Notification No. 88/88 -C.E., dated 1 -3 -88. It is also on record that the appellant made a request to the Superintendent having jurisdiction over the factory of the supporting manufacturer to issue the certificate to the above effect, which request does not stand responded by him.

(2.) VIDE present impugned order passed by the Commissioner of Customs in de novo proceeding, the benefit stands denied to the appellant on the sole ground that there is no certificate by the jurisdictional Central Excise authorities certifying that no input stage credit is availed, though there is a certificate by the supporting manufacturer. We, prima facie, agree with the learned Advocate. The condition No.V(a) of Notification No. 203/92 -Cus. nowhere specifies that such certificate is required to be issued by the Central Excise authorities. Secondly, the appellant in any case made a request to the Central Excise authority to issue such certificate for which there is no response from him and the appellant cannot be blamed for the same. Thirdly, the supporting manufacturer has himself certified that no such credit has been availed by him, which stand does not stand rebutted or countered by the Revenue by producing any evidence. Further, it is seen that the supporting manufacturer was enjoying the exemption in terms of the Notification No. 88/88 -C.E. and there was no occasion for him to avail the Modvat credit.

(3.) IN view of all these findings of the Commissioner that the appellant has not established the fact that non -availment of credit by supporting manufacturer cannot be prima facie sustained, especially, in the absence of any evidence to the contrary. We accordingly, allow the stay petition unconditionally.