2010 (8) TMI 286 - HC - Central Excise

Rebate claim non-following of procedure export of exempted goods - Notification Nos. 42/94, and 47/94, - appellant being a regular exporter was stated to have been following the prescribed declaration available to Rule 13 - factum of export was not in dispute - it is not the case of the authority that there was any other lapse or willful omission committed by the appellant in making the claim or that the factum of export was not proved - Order-in-Original set aside

Summary

Issues involved:
1. Interpretation of Rule 12(1)(b) and Rule 13 of the Central Excise Rules for claiming rebate on exported goods.
2. Discretionary power of the Assistant Commissioner under the proviso to Rule 12(1)(b) in granting rebates.
3. Compliance with the conditions of Notification Nos. 42/94 and 47/94 for rebate claims.
4. Authority's obligation to consider actual exportation of goods and exercise discretionary powers.

Detailed Analysis:
1. The appellant, engaged in manufacturing I.V. Fluids for export, claimed rebate under Rule 12(1)(b) for goods cleared at nil rate of duty. The dispute arose as the appellant inadvertently failed to follow the clearance procedure under Rule 12(1)(b) from May 2000 to March 2001. Despite exporting goods, the rebate claim was rejected by the Assistant Commissioner, leading to subsequent dismissals in appeal and revision. The appellant contended that the Assistant Commissioner erred in not granting the rebate despite the discretionary power vested under the proviso to Rule 12(1)(b).

2. The appellant argued that the Assistant Commissioner should have considered the actual exportation of goods and exercised the discretionary power granted under the proviso to Rule 12(1)(b). The appellant highlighted Circular No. 144/55/95-CX, delegating the power of satisfaction of exportation to the Assistant Commissioner. The Assistant Commissioner's failure to exercise this discretionary power, despite the factum of export not being disputed, was the primary contention for seeking the rebate.

3. The Court noted that the conditions under Notification Nos. 42/94 and 47/94 were substantially similar, requiring a declaration by the manufacturer regarding the finished goods proposed for export. Despite the appellant following the procedure under Rule 13, the conditions under both notifications were essentially identical. The Court found no valid reason for the Assistant Commissioner's refusal to grant the rebate, especially when the factum of export was established and no other lapses were identified in the claim process.

4. Ultimately, the Court allowed the writ appeal, setting aside the orders that denied the rebate claim. The Court directed the Assistant Commissioner to reconsider the appellant's application for rebate under Rule 12(1)(b) promptly, emphasizing the need to exercise discretionary powers in cases where the factum of export is established. The judgment underscored the importance of considering actual exportation and exercising discretionary powers vested in the authority for granting rebates on exported goods.