2015 (11) TMI 358 - AT - Central Excise

Denial of rebate claim - Reduction in rate of duty - Held that - Appellant after filing rebate claim for ₹ 5,82,202/-, informed the sanctioning authority that their claim be sanctioned as per revised rate (which is 8%BED as against 10% BED paid by the Appellant) vide their letter dated 28.05.2009 - From the letter it is amply clear that the Appellant themselves proposed to the sanctioning authority to restrict the rebate claim as per revised rate i.e. 8% BED by which rebate amount comes to ₹ 4,65,761/- and the same amount was sanctioned by the Adjudicating Authority. This clearly shows that though the Appellant initially filed the rebate claim for ₹ 5,82,202/- but subsequently, before sanctioning the same, restricted the claim to ₹ 4,65,761 - Since the Appellant paid duty @10% BED instead of effective rate of 8% BED, the difference amount is not part of the rebate, that s why Appellant filed a separate claim for that and the Assistant Commissioner sanctioned the refund of the same by way of cenvat credit and not by way of cash for the reason that the said difference amount of ₹ 1,16,441/- is not treated as rebate but excess payment, therefore the same was sanctioned as refund of excess payment of duty. - Appellant was not required to file appeal against the order dated 24.06.2009 and they rightly filed a separate refund - Therefore the impugned order is not sustainable, the same is set aside - Decided in favour of assessee.

Issues:
1. Disposal of rebate claim by the Assistant Commissioner.
2. Challenge to the order dated 7.12.09 by the Revenue.
3. Validity of the impugned order passed by the Ld. Commissioner (Appeals).
4. Appellant's contention regarding the order dated 24.06.2009.
5. Assistant Commissioner's decision on the rebate amount.
6. Nature of the separate refund claim filed by the Appellant.

Analysis:
1. The Appellant filed a rebate claim for duty paid on export clearance. The Appellant paid duty at 10% + Education cess instead of the applicable 8% + Education cess. The Assistant Commissioner sanctioned a rebate of Rs. 4,65,761/- based on the Appellant's request to sanction the rebate at the revised rate of 8%. A separate refund claim for the difference amount of Rs. 1,16,441/- was also sanctioned. The Revenue challenged the order dated 7.12.09, arguing that the initial order dated 24.06.2009 should have been appealed against instead.

2. The Ld. Commissioner (Appeals) set aside the order dated 7.12.09, stating that since the Appellant did not challenge the first order dated 24.06.2009, it had attained finality. The Appellant had requested the sanctioning authority to restrict the rebate claim to Rs. 4,65,761/- as per the revised rate of duty. The Assistant Commissioner passed the order for the sanctioned amount only, as the Appellant had withdrawn the claim for Rs. 1,16,441/-. The Assistant Commissioner's finding supported this action.

3. The Appellant contended that the impugned order was incorrect as they had withdrawn the rebate claim for Rs. 1,16,441/- before the order was passed. The Assistant Commissioner correctly sanctioned the separate refund for the excess payment of duty. The Appellant was not required to file an appeal against the order dated 24.06.2009, and the impugned order was set aside, restoring the order-in-original dated 07.12.2009.

4. The Appellant's submission clarified that they had initially filed the rebate claim for Rs. 5,82,202/- but later restricted it to Rs. 4,65,761/- based on the revised rate of duty. The Assistant Commissioner's decision to sanction the rebate only for the claimed amount was in line with the Appellant's request. The separate refund claim was processed for the excess payment of duty at 10% instead of the revised 8%.

5. The Assistant Commissioner's decision to treat the excess payment of duty as a separate refund claim rather than part of the rebate was justified. The refund was sanctioned by recredit in the cenvat account, distinguishing it from the rebate claim. The impugned order was deemed unsustainable, and the Appellant's appeal was allowed with consequential relief as per the law.

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