2016 (12) TMI 475 - HC - Central Excise

DEEC Scheme - Whether the adjudicating authority is not required to call the DEEC and other related documents for quantification of correct amount of refund? - Held that - the Government itself was of the definite opinion that it lacked jurisdiction at least in the circumstances of the case. Although the learned counsel has urged that the Assessee approached the Central Government without appraising it of the pendency of the appeal, this Court is not persuaded to differ with the submission of the Assessee because what in fact is being urged is that it is speaking in two voices. Having expressed itself with respect to the lack of jurisdiction in the facts, the government cannot be heard to say that it did possess jurisdiction under Section 35EE - answered against Revenue. Whether the CESTAT has the jurisdiction to decide the appeal in respect of any order passed by the Commissioner (Appeals) under Section 35A of the Central Excise Act, 1944 read with sub-section 1(b) of Section 35B of the Act ibid and proviso thereto in the cases wherein goods have been exported out of India (except to Nepal and Bhutan) CEAC 11/2005 Page 2 of 7 without payment of duty? - Held that - the permissibility of the credit in the facts of the case, undoubtedly, Rule 57F, as existing on the date, did not permit credit in case of clearance made from the third party premises as in the present case. This Court is obvious of the fact that the concerned jurisdictional Commissioner did permit such clearance and that on that basis the exports were made and even the DEEC benefits were given. All that the job workers did was to put together all manufactured products which answered the specifications of the importers requirements in terms of the order given by the CESTAT in this case. In light of the difficulties faced by such exporters especially those relying upon third party manufacturers, in the absence of their capacity to deal with larger orders this rule enabled the authority to make such clearance order and also enabled claim of credit from 22.02.1999 onwards - larger interest of justice lies in not disturbing the order of the CESTAT. Appeal dismissed - decided against Appellant.

Summary

Issues:
1. Whether the adjudicating authority is required to call DEEC and other related documents for quantification of the correct amount of refund?
2. Whether CESTAT has jurisdiction to decide the appeal in cases where goods have been exported without payment of duty?

Analysis:

Issue 1:
The case involved an appeal by the Commissioner of Central Excise regarding the quantification of refund claims under Rule 57 F(3) of the Central Excise Rules, 1949. The Assessee, a manufacturer of paints and varnishes, had received export orders and sought refunds under the DEEC Scheme. The Assistant Commissioner rejected the refund claims multiple times, citing non-compliance with conditions under Rule 57 F(3) and the DEEC Scheme. The CESTAT set aside the lower authorities' findings, emphasizing that the denial of credit based on missing duty paying documents was not sustainable. The CESTAT's decision highlighted that the admissibility of credit should not be questioned when seeking a refund of accumulated credit under Rule 57F.

Issue 2:
Regarding the jurisdiction of CESTAT, the Revenue argued that the appeal under Section 35B was not maintainable due to the exclusion of orders related to exports without payment of duty. The Revenue also contended that existing notifications did not permit MODVAT credit for clearance from job workers' premises. However, the Assessee relied on the permission granted by the Assistant Commissioner for clearance from job workers' premises and subsequent amendments allowing such credits. The Central Government rejected the Assessee's revision application, stating that the refund claims fell within the categories of cases mentioned in the Proviso to Rule 57F(3). The Court upheld the CESTAT's decision, emphasizing the larger interest of justice in not disturbing the order based on the circumstances and amendments in place.

In conclusion, the Court dismissed the appeal, ruling against the Revenue on both issues. The judgment highlighted the importance of adhering to legal provisions and considering the specific circumstances and amendments in determining the admissibility of refund claims and jurisdiction of appellate authorities.