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2012 (7) TMI 876 - CGOVT - Central ExciseDenial of rebate claim - Applicant being 100% EOU enjoyed unconditional exemption under Notifi. No. 24/03-C.E. dated 31-3-2003 - Held that - There is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear all the goods manufactured by them for exports as per the EOU scheme. Such units can clear the goods in DTA with prior permission of Development Commissioner. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export the provisions of sub-section (1A) of Section 5A are applicable and no duty was required to be paid on such exported goods. As such rebate claim is not admissible in terms of Rule 18 of Central Excise Rule 2002 read with Notification No. 19/2004-C.E.(N.T.) dated 6-9-2004. - erroneous refund/rebate sanctioned under an order can be recovered by invoking provisions of Section 11A of Central Excise Act 1944 without taking recourse to provisions of Section 35E ibid and filing appeal against the order under which refund was initially sanctioned. - Decided in favour of Revenue.
Issues Involved:
1. Legality of rebate claims by a 100% Export Oriented Unit (EOU). 2. Applicability of Notification No. 24/2003-C.E. and Section 5A(1A) of the Central Excise Act, 1944. 3. Validity of recovery proceedings under Section 11A of the Central Excise Act, 1944 without reviewing the initial Order-in-Original. 4. Entitlement to cash refund versus re-credit in Cenvat Credit Account. Detailed Analysis: 1. Legality of Rebate Claims by a 100% Export Oriented Unit (EOU): The applicants, a 100% EOU, exported goods and claimed rebates under Rule 18 of the Central Excise Rules, 2002. The adjudicating authority rejected these claims, stating that as a 100% EOU, the applicants enjoyed unconditional exemption under Notification No. 24/2003-C.E. and were not required to pay duty on exported goods. The Commissioner (Appeals) upheld this view, leading to the current revision application. The applicants argued that the rebate claims were sanctioned after pre-audit and should be considered final and legal. 2. Applicability of Notification No. 24/2003-C.E. and Section 5A(1A) of the Central Excise Act, 1944: Notification No. 24/2003-C.E. provides absolute exemption to goods manufactured by a 100% EOU from the whole of duty of excise. As per Section 5A(1A) of the Central Excise Act, when an exemption is granted absolutely, the manufacturer cannot pay the duty. The government noted that the notification was unconditional regarding goods cleared for export, and thus, the applicants could not pay duty on such goods. Therefore, the rebate claim was inadmissible under Rule 18 of the Central Excise Rules, 2002, read with Notification No. 19/2004-C.E.(N.T.). 3. Validity of Recovery Proceedings under Section 11A of the Central Excise Act, 1944 without Reviewing the Initial Order-in-Original: The applicants contended that the department could not initiate recovery proceedings under Section 11A without first reviewing the initial Order-in-Original under which the rebate claims were sanctioned. However, the government cited several judgments, including those from the Hon'ble High Court of Bombay and the Supreme Court, which established that Section 11A is an independent substantive provision. It allows for the recovery of erroneously refunded amounts without the need for prior appellate proceedings. Thus, the recovery of the erroneous rebate was deemed valid. 4. Entitlement to Cash Refund versus Re-credit in Cenvat Credit Account: The government observed that the duty paid without the authority of law should be treated as a voluntary deposit. It cannot be retained by the government and must be returned in the manner it was paid. The Hon'ble High Court of Punjab & Haryana ruled that refund in cash of higher duty paid on export products is not admissible; instead, the refund should be made through re-credit in the Cenvat Credit Account. Consequently, the government directed that the excess amount paid by the applicants be re-credited to their Cenvat Credit Account. Conclusion: The government upheld the denial of the rebate claims, affirming that the applicants, as a 100% EOU, were not entitled to pay duty on exported goods due to the unconditional exemption provided by Notification No. 24/2003-C.E. However, the government modified the Order-in-Appeal to allow the re-credit of the excess paid amount in the Cenvat Credit Account, rather than a cash refund. The recovery proceedings under Section 11A were deemed valid without the need for reviewing the initial Order-in-Original.
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