2013 (7) TMI 886 - CGOVT - Central Excise

Denial of rebate claim - goods exported were wholly exempted from payment of Central Excise duty vide Notification No. 30/2004-C.E., dated 9-7-2004 - Held that - applicant availed exemption from payment of duty under Notification No. 30/2004-C.E. (N.T.), for domestic clearances whereas on export clearance duty was paid in terms of Notification No. 29/2004-C.E. (N.T.). - exemption granted absolutely from whole of duty of excise has to be availed and in that case there is no option to pay duty. In this case goods are not exempted unconditionally. The Notification No. 30/2004-C.E. (N.T.) is a conditional one since said exemption is available only if Cenvat credit is not availed. So, the applicant was not under any statutory compulsion to avail said notification. As such there was no bar on the applicant to pay duty under Notification No. 29/2004-C.E. (N.T.) since as per C.B.E. & C. Circular No. 845/03/06-CX (F. No. 267/01/06-CX.8), dated 1-2-2007 and 795/28/2004-CX, dated 28-7-2004, both the Notifications can be availed simultaneously. - rebate claim is admissible to the claimant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - Decided in favour of assessee.

Summary

Issues:
- Revision application against order-in-appeal regarding rebate claims under Central Excise Rules
- Interpretation of Notification No. 30/2004-C.E. and Section 5A(1) of the Central Excise Act, 1944
- Compliance with C.B.E. & C. instructions regarding duty exemptions
- Admissibility of rebate claim under Rule 18 of Central Excise Rules, 2002

Analysis:
The revision application was filed against an order-in-appeal concerning rebate claims by M/s. Jaicorp Ltd., Mumbai under Rule 18 of Central Excise Rules, 2002. The dispute arose when the department contended that a rebate claim of &8377; 71,507/- was not eligible as the goods exported were wholly exempted from Central Excise duty under Notification No. 30/2004-C.E. The department argued that since the applicant did not avail Cenvat credit facility, the payment made could not be considered as Central Excise duty payment. The Commissioner (Appeals) upheld this argument, leading to the revision application before the Central Government.

The applicant based their case on the interpretation of Notification No. 30/2004-C.E. and Section 5A(1) of the Central Excise Act, 1944. They emphasized that the notification provided conditional exemption, and the goods exported were not absolutely exempted from duty. The applicant also distinguished their case from a previous decision, stating that the goods in question were dutiable, and the exemption was granted through a conditional notification, not by the Tariff itself.

Regarding compliance with C.B.E. & C. instructions on duty exemptions, the Government noted that both Notification No. 30/2004-C.E. (N.T.) for domestic clearances and Notification No. 29/2004-C.E. (N.T.) for export clearances could be availed simultaneously. The department argued that since goods were exempted under Notification No. 30/2004-C.E. (N.T.), no duty payment was required as per Section 5A(1A) of the Act. However, the Government clarified that as the exemption was conditional and the applicant had not availed Cenvat credit, they were not compelled to use the notification. Therefore, the applicant had the option to pay duty under Notification No. 29/2004-C.E. (N.T.).

In conclusion, the Government found the rebate claim admissible under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.). Consequently, the impugned order-in-appeal was set aside, and the revision application was allowed.