2015 (10) TMI 2523 - AT - Central Excise

Refund claim - Notification No. 51/94-C.E. (N.T.), dated 22-9-1994 and Notification No. 45/2001-C.E. (N.T.), dated 26-6-2001 - duty paid on export - payment is received in freely convertible currency and the procedure laid down is fulfilled - bond for clearance of goods under above notifications, not executed by the appellant - Held that - Needless to say the condition to execute bond is incorporated in the notification to safeguard the revenue when the export is made without payment of duty. In the present case, the goods have been exported after payment of duty. The execution of bond, in such case, would be a futile exercise. The second condition of receiving payment in foreign currency is undeniably fulfilled by the appellant. Therefore, by applying the ratio of decision of Apex Court in the case of Share Medical Care v. Union of India 2007 (2) TMI 2 - SUPREME COURT OF INDIA , even if the assessee does not claim benefit under particular notification initially, he is not debarred from claiming such benefit at the later point of time. Hence, we are able to reach inescapable conclusion that the appellant is entitled for refund. - Decided in favour of appellant

Summary

Issues:
- Interpretation of Notification No. 51/94-C.E. (N.T.) and Notification No. 45/2001-C.E. (N.T.)
- Execution of bond requirement for duty-free export
- Payment mode discrepancy and its impact on duty refund

Interpretation of Notification No. 51/94-C.E. (N.T.) and Notification No. 45/2001-C.E. (N.T.):
The appellant, engaged in Telecom Equipment manufacturing, exported goods to Nepal with a payment discrepancy. The dispute arose as the payment was received in a freely convertible currency instead of Indian currency as stated in the contract. The appellant sought a refund of Central Excise duty paid on export under Notification No. 51/94-C.E. (N.T.) and Notification No. 45/2001-C.E. (N.T.). The adjudicating authority rejected the refund claim, stating that the bond condition specified in the notifications was not fulfilled. However, the Commissioner (Appeals) allowed the refund, leading to the department's appeal to the Tribunal. The Tribunal remanded the matter to ascertain the appellant's eligibility under Notification No. 45/2001-C.E. (N.T.). The subsequent rejection of the claim was based on the non-execution of the bond, a mandatory requirement for duty-free exports under the notifications.

Execution of bond requirement for duty-free export:
The Tribunal analyzed the necessity of executing a bond for duty-free exports under the notifications. Despite the duty payment at the time of export, the appellant received payment in a freely convertible currency later. The Tribunal emphasized that the bond execution condition aims to protect revenue in duty-free export scenarios. In this case, as goods were exported after duty payment, the bond requirement seemed redundant. The Tribunal referenced past judgments highlighting that the execution of a bond is unnecessary when duty has been paid, reinforcing the appellant's entitlement to a refund.

Payment mode discrepancy and its impact on duty refund:
The appellant's argument against the Revenue's claim regarding invoice dates vis-a-vis Notification No. 45/2001-C.E. was supported by the similarity between Notification No. 51/94-C.E. (N.T.) and Notification No. 45/2001-C.E. (N.T.). The Tribunal considered precedents emphasizing that a party can claim benefits under a notification at a later stage, even if not initially claimed. Citing relevant judgments, the Tribunal concluded that the appellant, having fulfilled the payment in foreign currency condition, was entitled to the duty refund. Consequently, the Tribunal set aside the impugned order and allowed the appeal, granting consequential relief as applicable.