2008 (2) TMI 282 - AT - Central Excise

Goods cleared to Nepal on payment of duty - refund filed on noticing exemption u/not. no. 45/01 since respondents obtained letter of credit from the buyer in their name before the export & entire amount was received in foreign exchange, it cannot be said that respondent didn t complied with the condition of the notification - even if an applicant doesn t claim benefit under a particular notification at initial stage, he is not debarred from claiming such benefit at a later stage

Summary

Issues:
- Appeal against Commissioner (Appeals) order allowing refund of duty under Notification No. 45/2001-CE(NT).
- Compliance with conditions of Notification No. 45/2001-CE(NT) for clearance of goods without payment of duty.
- Interpretation of the Supreme Court decision in Share Medical Care case regarding claiming benefits under different notifications.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (Appeals) order that allowed the refund of duty to the respondent under Notification No. 45/2001-CE(NT). The respondent had initially cleared goods to Nepal by paying duty but later realized they were entitled to clear the goods without payment of duty under the said notification. The Adjudicating Authority rejected the refund claim, but the Commissioner (Appeals) reversed this decision after examining the documents and citing the Share Medical Care case decided by the Hon'ble Supreme Court.

2. The Revenue, represented by the learned DR, argued that the refund claim was rightly rejected by the Adjudicating Authority as the respondent did not mention the benefit of Notification No. 45/2001-CE during the refund claim application. The Revenue contended that the respondent failed to comply with the conditions of the notification, specifically related to the procedure for clearance of goods without payment of duty.

3. Upon review, the Member (J) found that the adjudicating authority rejected the refund claim based on the respondent's alleged failure to comply with the conditions of Notification No. 45/2001-CE(NT). However, the Commissioner (Appeals) noted that the respondent did fulfill the notification's conditions by obtaining a letter of credit from the buyer in their name before exporting the goods and receiving the entire amount in foreign exchange. The Share Medical Care case precedent was cited, emphasizing that an applicant can claim benefits under a notification at a later stage, even if not initially claimed.

4. The decision highlighted that the Share Medical Care case clarified that if an applicant is entitled to benefits under multiple notifications, they can claim more benefits, and authorities are obligated to grant such entitlements. It was argued by the Revenue that the procedures for clearance of goods without payment and on payment of duty are mutually exclusive, but the Share Medical Care case precedent indicated that if an applicant is eligible for benefits under different notifications, they can claim all applicable benefits.

5. Ultimately, the Member (J) found no reason to interfere with the Commissioner (Appeals) order and rejected the Revenue's appeal, affirming the decision to allow the refund of duty to the respondent under Notification No. 45/2001-CE(NT). The judgment was dictated and pronounced in the open court, concluding the legal proceedings in this matter.