2018 (11) TMI 299 - AT - Central Excise

Recovery of sanctioned refund claim - refund were sanctioned under Rule 18 read with Notification No. 21/2004-CE (NT) - demand on the ground that rebate of duty paid on materials/inputs used in the manufacture of resultant export products under advance licence is not allowable /admissible as per Condition No. (viii) of the Customs N/N. 96/2009-Cus - case of appellant is that the subject Condition No.(viii) of the said Customs N/N. 96/2009-Cus is not applicable to the appellant s case, as the appellant had not availed export rebate in respect of materials which they had imported duty free under the N/N. 96/2009-Cus. Held that - There is no conditions in the said Notification that if any Contravention of the condition of Notification No. 96/2009-Cus is made then the assessee is not be eligible for rebate of duty paid on raw material used in the export goods in terms of Rule 18 and Notification issued there under - Rule 18 Notification No. 29/2004-CE is self contained statutory provision for granting rebate of duty paid on raw material used in the export goods subject to certain procedure /permission. The appellant have scrupulously followed the procedure and also obtained the permission, only after compliance thereof the rebate was sanctioned, since, in view of this position, it is not permissible in law to import any extraneous conditions of some different Notification into the provision of rebate and rebate cannot be rejected for that reason. Also, the appellant have claimed the rebate only in respect of indigenously procured raw material on which no benefit of N/N. 96/2009-Cus was availed, therefore, on this fact even the allegation in the show cause notice even though it is not sustainable as irrelevant with the sanction of rebate claim under Rule 18. The appellant was legally entitled for rebate claim even if there is any violation of conditions of Notification No. 96/2009-Cus if any - the order for recovery of the said rebate claim is absolutely illegal and not tenable - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Applicability of Condition No. (viii) of Customs Notification No. 96/2009-Cus to the appellant's case.
2. Legality of the recovery of the rebate amount sanctioned under Rule 18 of the Central Excise Rules, 2002.
3. Jurisdiction and authority of the adjudicating authority in passing the impugned order.
4. Revenue neutrality and entitlement to refund under Rule 5 of the Cenvate Credit Rules, 2004.
5. Time-barred nature of the show cause notice under Section 11A.
6. Legality of the Commissioner reviewing orders of the Deputy Commissioner.

Detailed Analysis:

1. Applicability of Condition No. (viii) of Customs Notification No. 96/2009-Cus:
The appellant argued that Condition No. (viii) of Customs Notification No. 96/2009-Cus is not applicable to their case as they did not avail export rebate for materials imported duty-free under the said notification. The notification was solely for exemption from Customs duty on imports against advance authorization, which the appellant availed for Resin and Additives. The rebate sanctioned under Rule 18 of the Central Excise Rules, 2002, and Notification No. 21/2004-CE (NT) was independent and did not include any condition linking it to Notification No. 96/2009-Cus. Therefore, importing conditions from Notification No. 96/2009-Cus to disallow the rebate claim under Rule 18 was argued to be without legal authority.

2. Legality of the Recovery of the Rebate Amount:
The tribunal found that Rule 18 and Notification No. 21/2004-CE (NT) are self-contained statutory provisions for granting rebate of duty paid on raw materials used in export goods, subject to certain procedures and permissions. The appellant had followed these procedures and obtained the necessary permissions. There was no condition in Notification No. 21/2004-CE (NT) that linked the rebate eligibility to compliance with Notification No. 96/2009-Cus. Therefore, the adjudicating authority's order to recover the sanctioned rebate for alleged violations of Notification No. 96/2009-Cus was without legal authority.

3. Jurisdiction and Authority of the Adjudicating Authority:
The tribunal noted that the permission order granted by the jurisdictional Deputy Commissioner, which formed the basis for the rebate claim, had attained finality as it was neither challenged nor set aside by any appellate authority. Consequently, the impugned order by the Commissioner was beyond jurisdiction and authority, rendering it illegal.

4. Revenue Neutrality and Entitlement to Refund:
The appellant argued that the entire exercise was revenue-neutral. Even if they were not entitled to the export rebate, they would be eligible to claim a refund of the Excise duty paid on indigenously procured raw materials under Rule 5 of the Cenvate Credit Rules, 2004. This argument further weakened the case for recovery of the rebate amount.

5. Time-Barred Nature of the Show Cause Notice:
The appellant contended that the show cause notice dated 09.05.2014 was partly time-barred under Section 11A. The tribunal did not explicitly address this issue in the judgment, but it formed part of the appellant's broader argument against the impugned order.

6. Legality of the Commissioner Reviewing Orders of the Deputy Commissioner:
The appellant pointed out that the department had only filed appeals against 15 out of the 32 original orders sanctioning the rebate. For the remaining 17 orders, no appeals were filed, making the Commissioner's review of these orders legally unsustainable. The tribunal agreed that the impugned order amounted to an impermissible review of the Deputy Commissioner's orders by the Commissioner.

Conclusion:
The tribunal concluded that the appellant was legally entitled to the rebate claim even if there were any violations of Notification No. 96/2009-Cus. The order for recovery of the rebate was deemed illegal and not tenable. Consequently, the impugned order was set aside, and the appeal was allowed.

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