ORDER
I.J. Rao, Member (T)
1. These are revision applications filed before the Central Government which, under Section 131-B of the Customs Act, 1962, stand transferred to the Tribunal to be disposed of as if they were appeals presented before the Tribunal.
2. Both the appeals arise out of the above mentioned two orders passed by the Additional Collector of Central Excise, Meerut.
3. In Appeal No. 153/82 against Order No. 9-Add. Collr./l982 dated 18-9-82, the Additional Collector besides demanding duty on excess clearances effected by the appellant and detailed in the show-cause notice imposed a penalty of Rs. 7,000/-. In Appeal No. 154/82 the Additional Collector besides demanding duty of Rs. 69,193.15 P imposed a penalty of Rs. 10,000 on the appellant.
4. The issue being common in both the matters, we heard the appellant in both the appeals. Briefly stated, the facts are that the appellant manufactures switch boards control and relay panels, motor control centres etc., falling under item 68 of the Central Excise Tariff. In terms of Notification No. 89/79-CE dated 1-3-1979 which was superseded by Notification No. 105/80-CE dated 9-6-1980, exemption from duty was granted in respect of the first clearance of goods for home consumption up to a value not exceeding Rs. 30 lakhs (in respect of the period 19-6-1980 to 31-3-1980 the limit of Rs. 30 lakhs was reduced to Rs. 24 lakhs). The clearances by the appellant as submitted in the appeal were as follows ;
——————————————————————————–
Period For home For export Total
consumption
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Rs. Rs. Rs.
1-4-80 24,836.00 Nil 24,836.00
to
18-6-80
19-6-80 15,13,653.41 23,02,195.00 38,15,848.41
to
31-3-81
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15,38,489.41 23,02,195.00 38,40,684.41
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5. The argument of the appellant is that the goods cleared for export should not be taken into consideration in view of the clear wording of the notification and only the value of the goods cleared for home consumption should be considered to decide whether or not they exceeded the limits of clearances laid down by the notifications as condition of eligibility. Arguing on the basis of the details extracted above, the appellant submitted that in the year 1-4-1980 to 31-3-1981 the total clearances for home consumption were considerably less than the limits laid down by the notification and that, therefore, they were entitled to duty free clearances. The Additional Collector held as follows;
“The word home consumption used in the Notification is related to the manufacturer of the goods. In so far as M/s. International Minelmech Pvt. Ltd. are concerned at the point of clearance of the goods they have cleared goods to M/s. Ballarpur Industries Ltd. in India. Whether these goods would be ultimately exported wholly, partly or may eventually not be exported at all is not known at that particular point of time. If M/s. Ballarpur Industries Ltd. have exported these goods it is for them to claim rebate of the Central Excise duty paid for the exports made by them. Notification No. 105/80 dated 19-6-1980 stipulates only those exports which are directly made by the assessee under regular export procedure. In other words, such exports have to be made directly from the factory premises under normal export procedure. In this case, no such procedure was followed by Minelmech (P) Ltd.
In view of the above, the party’s contention that the value of the goods manufactured by them and exported by M/s. Ballarpur Industries Ltd. should not be included for computing the exemption limit cannot be accepted.”
6. In the appeal and before us the appellant submitted that the wording of notification No. 105/80-CE was quite clear and only the value of the goods cleared for home consumption should be taken into consideration. They further submitted that goods valued at Rs. 23,02,195 supplied by the appellant to M/s. Ballarpur Industries Ltd. were clearly and specifically for export and submitted a statement (Annexure ‘F’ to the appeal certified by M/s. Ballarpur Industries Ltd.) that these goods were so supplied by the appellant. They also submitted the following documents in support of their claim that the goods supplied by them to M/s. Ballarpur Industries Ltd. were for the purpose of export and were so exported :–
(a) Copy of orders placed by M/s. Ballarpur Industries Ltd., indicating the material for the specific purpose of export for a Paper and Pulp Project in Thailand which clearly indicated the designation of the equipment supplied by the appellant;
(b) Copies of the appellants’ invoices which clearly show description and designation of the material supplied to M/s. Ballarpur Industries Ltd. against the specific orders for export ;
(c) Copies of bills of lading with the respective packing lists of materials shipped in each shipment which clearly identifies with their marking that the material with designation was supplied by the appellants. It also shows that the goods were shipped in the original packing without any change whatsoever ;
(d) Photo copies of the shipping bills duly certified by the Customs authorities, which prove that the equipments covered by specific bills of lading and the vessels marked have actually been shipped out of India.
They further submitted that Notification No. 105/80-CE does not mention the word “exports” nor any export procedure is prescribed therein. It only refers to clearances for home consumption whereas the goods as detailed by the appellant were not used for home consumption as is proved by the documentation and as accepted, according to the appellant’s claims, by the Additional Collector himself. They submitted that this notification has no condition that there should be direct exports from the factory premises and the Additional Collector has expressed his own view on the notification and has not gone by the language and spirit of the notification. In sum, the appellant submits that they can prove that not only the goods were not cleared for home consumption but that they were cleared specifically for export and that they were actually exported. As a result, the appellant submitted, the value of the clearances for export and actually exported should not be included while computing the value of clearances. They also brought to our notice that in reply to the show-cause . notice the appellant submitted documents before the Additional Collector to show that the goods which were supplied to M/s. Ballarpur Industries Ltd. were meant for projects outside the country.
7. They drew our attention to a record of personal hearing dated 3-12-1981 (Appeal No. 153/82) and further submitted that in all the invoices issued to M/s. Ballarpur Industries Ltd. they clearly mentioned that the goods covered were export order and no sales-tax was being charged. They filed copies of some invoices to substantiate this point.
8. The Senior Departmental Representative, Shri V. Laxmi Kumaran, reiterated the findings of the Additional Collector and submitted that the appellant was selling the goods to M/s. Ballarpur Industries Ltd. and referred to the invoices. He also submitted that no GP2 was issued though this was an important document for purposes of clearances under the excise law. In reply, it was submitted on behalf of the appellant that Annexure ‘D’ to appeal shows an order for exports and, therefore, even if the goods were paid for by M/s. Ballarpur Industries Ltd., the clearance was only for export and not for home consumption. They further submitted that as they were working under exemption limits there was no question of issuing a GP2 and they were entitled to clearances by their own documents which in this case was an invoice covering each consignment.
9. We have considered the submissions made by both sides. The arguments of the appellant which have been detailed above, have been examined with reference to the wording of the Notification No. 105/8OCE. On a careful perusal of this notification we are of the opinion that the appellant’s main argument that there need not be actual export of goods by them but it is sufficient if the goods are cleared for export, is substantially correct. This would lead to the position that the goods so cleared for export and actually exported out of India cannot be considered as goods cleared for home consumption and as a consequence the value of such goods cannot be taken into consideration for computation of the value of clearances under Notification No. 105/80-CE. In view of the wording of this notification, we hold that both the orders passed by the Additional Collector coming to the conclusion which has been reproduced in para 5 supra is wrong and that it must be set aside.
10. We, therefore, order that the Additional Collector’s order be set aside. We further order that the matter be reconsidered and the value of the goods cleared and actually exported within the year referred to above should be excluded for purposes of computing the value of clearances for home consumption to decide the eligibility of the appellant for exemption under Notification No. 105/80-CE. Both the appeals are disposed of accordingly.