2016 (7) TMI 866 - CGOVT - Central Excise

Condonation of delay - department has filed these revision application 4 days after initial stipulated three months period - Rebate / refund claim - export of goods - The original authority rejected the rebate claim for simultaneously claiming two benefits viz input credit and drawback claim which are not admissible to them. - Commissioner (Appeals) allowed appeal holding that as the applicant availed only customs portion of drawback rebate in admissible to them. Held that - Government finds that the applicant in their application for condonation of delay has in a general manner mentioned that the delay in filing is due to postal delay even though application was sent by speed post and over burdening of their review section as reason for delay in filing the Revision Application. The applicant has failed to give any documentary evidences in support of their claim for the delay in filing of appeal. Under such circumstances Government is of the considered opinion that onus to show cause for not filing application is on the applicant who has failed to show sufficient cause that prevented him from filing Revision Application within stipulated period of three months. The Revision Application has been made contrary to the provisions of Section 35EE (2) and is therefore liable for rejection. Decided against the revenue.

Issues:
1. Rebate claim rejection for simultaneously claiming input credit and drawback claim.
2. Appeal allowed by Commissioner (Appeals) based on availing only customs portion of drawback.
3. Revision application filed by the applicant department against the Order-in-Appeal.
4. Issue of limitation in filing Revision Applications beyond the stipulated three months period.

Issue 1: Rebate claim rejection for simultaneous claims
The case involved M/S. United Enterprises filing a rebate claim for duty paid on exported goods under Rule 18 of Central Excise Rules, 2002. The original authority rejected the claim due to simultaneous claims of input credit and drawback, which are not admissible. The Customs Notification No. 84/2010-Cus (N.T.) required a declaration of non-availment of Cenvat facility, which was not produced in this case. The claimant had submitted duty payment details from the manufacturer's Cenvat credit balance account along with the rebate claim, while also claiming drawback with the Customs Department. The guidelines stated that duty drawback is not admissible if Cenvat Credit is availed, and the claimant can only avail one benefit, either input credit or drawback claim. The government observed that the claimant knowingly claimed both benefits with an intent to avail undue benefits, which is not legally permissible.

Issue 2: Appeal allowed by Commissioner (Appeals)
The applicant department filed a revision application against the Order-in-Appeal, citing grounds related to non-availment of Cenvat facility and inadmissibility of simultaneous benefits. The Commissioner (Appeals) had allowed the appeal, stating that the applicant availed only the customs portion of drawback, making the rebate admissible. The government reviewed the case records, oral and written submissions, and the impugned orders. It was observed that the rebate claim of the respondent was initially rejected by the original authority, leading to the appeal and subsequent revision application.

Issue 3: Revision application and limitation
The revision application was filed by the applicant department beyond the stipulated three months period under Section 35 EE (2) of the Central Excise Act, 1944. The government noted that the application was filed 4 days after the initial three-month period, which was undisputed. The relevant provisions specified the time limit for filing a revision application and allowed for an extension of three months if sufficient cause was shown. The applicant cited postal delay and overburdening of the review section as reasons for the delay, but failed to provide documentary evidence to support the claim. As a result, the government found that the application was made contrary to the provisions and was liable for rejection.

In conclusion, the government rejected the revision application as time-barred without delving into the merits of the case, emphasizing the importance of adhering to the statutory timelines for filing such applications.

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