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TMI Blog2009 (12) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant is eligible for the rebate claim only to extent based on the actual Bank Realization of Foreign Remittance. The remaining claim of duty paid in excess of duty amount payable at the actual bank realization which is the transaction value, was allowed re-credit in Cenvat Account. 3. Aggrieved by these orders-in-original, the respondent filed appeals with the Commissioner (Appeals) who allowed the appeals and held that the respondent is entitled to full rebate in cash irrespective of the Bank Realization which was lowered due to fluctuations in the exchange rate. 4. Aggrieved by this order-appeal, the applicant Commissioner has filed this revision applications on the following grounds : 4.1 The appellate authority has observed that there is no provisions under Rule 18 of Central Excise Rules, 2002 to sanction the rebate partly by way of Cenvat credit that the situation of partial sanction of rebate is not specified in the Cenvat Credit Rules, that when duty has been paid in Rupees and the amount received as rebate is in Rupees too, there is no justification to adopt the fluctuations in the exchange rate. Thus, the action of restricting the rebate by paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board's Circular. 5. A Notice under Section 35EE was issued to the respondent who filed their counter reply vide their letter dated 13-5-09. Their main arguments are as under : 5.1 We submit that the revision application filed by the Commissioner is essentially relying upon the decision of the Government of India in the case of Re : Bhagirth Textiles Ltd. - 2006 (202) E.L.T. 147 (G.O.I.). In this context, it is submitted that by now it is well settled that an exporter is eligible to claim rebate of the actual amount of Central Excise Duty paid on the goods exported. Once it is established that the amount of Excise Duty has been paid on the goods exported, rebate cannot be deducted or reduced on any consideration, whatsoever. The argument that the amount received in rupee terms was lower than the amount actually invoiced for the export of medicines is not at all relevant. What is relevant is whether the Excise Duty amount for which the rebate is claimed by the exporter was actually paid or not. In the instant case, it is not in dispute that the amount for which the rebate was claimed by Panacea Biotec Ltd. was actually paid by them. It is submitted that it is absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in that particular case and it is also possible that the exporter himself might have asked for this amount of rebate by way of Cenvat Credit. However, the Government of India has nowhere laid down a specific law in Bhagirth Textiles Ltd. that a part of the rebate claim must be sanctioned by way of Cenvat Credit only. 5.3 M/s. Panacea Biotec Ltd. would like to submit that there is no essential difference between the view taken by the Government of India in Bhagirth Textiles Ltd. and the law laid down by the Hon'ble Tribunal in several cases. The essence is the same. Namely, that the rebate is to be sanctioned for the full amount of duty which is actually paid on the goods exported and that this amount cannot be reduced for any reason whatsoever, including, the fictitious reason that the amount received in rupee terms is less than the amount actually invoiced. 5.4 The respondents submit that by now it is well settled as stated above also, that an exporter is entitled to rebate in cash from the Department and the Department has no authority to sanction even a part of the rebate by way of Cenvat Credit. In this contact, the respondent would like to rely upon certain jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of medicines is not at all relevant. There is no authority for sanctioning part rebate claim in cenvat credit account. In this regard, it is relevant to go through the above said Government of India Order. Facts of the said case are that Shri Bhagirth Textiles Ltd., Mohali filed 15 rebate claims for Rs. 3,650,905/- in respect of duty paid on goods cleared for export which was sanctioned by the rebate sanctioning authority i.e. Asstt. Commissioner. During the scrutiny of the Bank realization certificate, it was noticed that the exporter had realized lesser amount i.e. sale proceeds as compared to the value shown in ARE-1. The differential value of Rs. 1,704,286/- involved duty of Rs. 2,35,192/- was sought to be recovered by issuing a show cause notice. The adjudicating authority confirmed the demand of Rs. 2,35,192/-. Commissioner (Appeals) did not agree with the finding of adjudicating authority and allowed the rebate of said amount also/Aggrieved by said orders-in-appeal, Commissioner Central Excise Nagpur filed revision application before Government of India which was decided vide above referred Government of India Order. 10. The operating part of the revisionary authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods are related person. Govt. therefore, would agree with the contention of the applicant Commissioner that the excise duty on the goods should have been paid on transaction value as defined under Section 4(3)(d) of the Central Excise Act, 1944. C.B.E.C. vide their Circular No. 203/37/96-CX., dated 26-4-96 have also clarified that AR4 value should be determined under Section 4 of the Central Excise Act, which is required to be mentioned on the invoices issued under Rule 52A of the Central Excise Rules, 1944. In the instant case the respondents themselves have admitted in their letter of cross objection dated 26-5-2005, that they have paid Central Excise duty on CIF value of the impugned goods for purpose of claiming rebate under Rule 18 of the Central Excise Rules, 2002. Govt. therefore, would agree with the contention of the Applicant Commissioner that as per provisions of Section 4(1)(a) and 4(2)(d) of Central Excise Act, 1944 the value in terms of Section 4 should be the amount that the buyer of the exported goods is liable to pay. In the instant case, the buyer of the exported goods had paid an amount as shown in the Bank realization certificate. In any case the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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