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TMI Blog2010 (2) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Mills, Baddi against the orders-in-appeal No. 59 to 92/C.E./CHD/Rev/2009 dated 6-2-2009 passed by the Commissioner (Appeals), Central Excise, Chandigarh. 2. Brief facts of the cases are that M/s. Auro Spinning Mills, M/s. Auro Textiles Ltd and M/s. Auro Weaving Mills are engaged in the manufacture of cotton and blended yarns, processed fabrics and woven fabrics of cotton and synthetic respectively falling under Chapter 52 55 of the First Schedule to the Central Excise Tariff Act, 1985. The applicants have been effecting clearance of the finished goods manufactured by them for home consumption as well as for export under claim for rebate of duty paid on goods, under the provision of Section 118 of the Central Excise Act, 1944 (hereinafter referred to as the Act) read with Rule 18 of Central Excise Rules, 2002 (hereinafter referred to as the Rules), The Assistant Commissioner, Central Excise Division, Shimla vide orders-in-original sanctioned their rebate claims in cash. 3. Being aggrieved with the order of the adjudicating authority, the department filed appeals with the Commissioner (Appeals) on the following grounds :- 3.1 That while working under Notification No. 30/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-appeal No. 96/CE/CHD/05 dated 23-8-2005, allowed revision application by setting aside the said order-in-appeal. 3.7 The orders passed by the assistant commissioner are legally incorrect and the amount paid by the applicant from the capital goods cenvat credit account should be treated as voluntary deposit and the same was to be returned by re-credit to the capital goods cenvat account. 4. Commissioner (Appeals) accepted the appeals of the Department and sets aside the orders-in-original on the ground that as no duty in case of export goods was required to be paid by the applicants when they have availed no input cenvat credit on the export goods which were therefore exempt from payment of duty under Notification No. 30/2004-C.E., and duty so paid by the applicants could be refunded in the manner of re-credit only and not in cash. 5. Aggrieved by these orders-in-appeal, the applicants, have filed these revision applications on the following grounds :- 5.1 The respondent wrongly rejected the rebate claim of central excise duty actually paid by the applicant @ 4% (cotton yarns) and @ 8% (cotton synthetic blended yarns) on exports made out of India. Rule 18 of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ground only. 5.6 That the respondent has wrongly rejected the rebate claim by assuming that effective rate (Nil) given in the Exemption Notification No. 30/2004 dated 9-7-2004 should have been claimed. It is well settled proposition of law that claim of any exemption notification in respect of any specific clearances is a matter of choice with the assessee and any beneficial piece of legislation cannot be forced on the assessee. Therefore, the applicant actually paid the concessional rate of duty @ 4% (cotton yarns) or @ 8% (cotton synthetic blended yarns) on the goods exported out of India and the actual amount paid as duty of excise is liable to be refunded, in terms of Rule 18 of the Central Excise Rules. Therefore, the applicant is eligible for cash refund of actual amount of duty paid on exports. 5.7 Moreover, the applicants has declared/mentioned that they are working under Notification No. 29/2004-C.E., in all the relevant documents. The excise invoices raised under Rule 11 of the Central Excise Rules, 2002 by the applicant also finds mention of the Notification No. 29/2004-C.E., while clearing the goods. Further, in form ARE-1 prepared for the clearance of goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to avail the same or not. The applicant cannot be compelled to take cenvat credit of any duty paid. 5.11 Further, it is emanating from the ARE-1 filed by the applicant that the applicant is claiming higher rate of drawback of duties under Customs and Central Excise Duties Drawback Rules, 1995. One of the conditions for claiming higher rate of duty drawback under these rules is that the claimant must not have availed the cenvat credit of the duty paid on the inputs. Thus, to avail of the higher rate of duty drawback, the applicant though was making exports under Notification No. 29/2004-C.E., but has not availed cenvat credit on inputs. Therefore, to hold that the applicant is only working under Notification No. 30/2004-C.E., is totally baseless. 5.12 That for rejecting the rebate claim, the applicant authority has baselessly relied upon the fact that the applicant has not taken cenvat on inputs w.e.f. 1-9-2004 and presumed that the finished goods manufactured from such inputs would be cleared only under Notification No. 30/2004-C.E. In this regard it is submitted that the assessee has availed cenvat credit on inputs in respect of goods cleared under Notification No. 29/2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-2004 and ER-I returns showing the availment of proportionate input credit in respect of goods cleared under Notification No. 29/2004-C.E., dated 9-7-2004. They further submitted that they have not claimed cenvat input credit on the goods cleared for export under Notification No. 29/2004-C.E. (N.T.), dated 9-7-2004 just to avail duty drawback on those goods. They submitted that availment of input credit is not a precondition for availing Notification No. 29/2004-C.E., dated 9-7-2004. They distinguished their case from that of M/s. Nahar Industrial Enterprises which was decided by the revisionary authority vide its Order No. 990, dated 21-11-2006. 8. Govt., has examined the relevant records, both oral and written submissions of the applicants and also perused the orders passed by the lower authorities. 9. From the perusal of records, Govt., observes that prior to 9-7-2004, the yarn manufactured by the applicants were chargeable to central excise duty of 16% in terms of Chapter 52 and 55 of the Central Excise Tariff Act, 1985. The Central Government has issued the exemption Notification No. 29/2004-C.E., dated 9-7-2004, for granting partial exemption by which the goods manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/2004-C.E., dated 9-7-2004. 11. During the relevant period, the applicants were clearing the goods for export after paying the concessional rate of excise duty 4% or 8% in terms of Notification No. 29/2004-C.E., dated 9-7-2004 and filing the rebate claims under Rule 18 of the Central Excise Rules, 2002. The applicants were not availing the cenvat credit on the inputs used in the manufacture of the exported goods just to claim higher duty drawback but, were claiming the cenvat credit on inputs used in the manufacture of finished goods cleared for home consumption under Notification No. 29/2004-C.E., on payment of duty and were also maintaining proper separate records for the same as per the Board Circular. They were entitled to avail both the Notification 29/2004-C.E., and 30/2004-C.E., simultaneously if they keep separate records for the same. The Commissioner (Appeals) has drawn a conclusion that as the applicants were not claiming the cenvat credit on the inputs used in the manufacture of the exported goods, hence they were working under exemption Notification No. 30/2004-C.E., dated 9-7-2004. Govt. observes that this conclusion of the Commissioner (Appeals) is without any b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellants cleared the goods for export on payment of duty under claim of rebate of duty. They filed rebate claim for Rs. 31,90,337/- in respect of such exported goods. Adjudicating authority sanctioned cash rebate of Rs. 7,00,161/- and remaining of Rs. 24,90,176/- was sanctioned as rebate in cenvat account. Department accepted the said order. However, party agitated the same before Commissioner (Appeals) who allowed the cash rebate of total amount of duty paid at tariff rate @ 16%. Department filed revision applications against the said order-in-appeal contending that party was required to pay duty in terms of Notification No. 29/2004-C.E., dated 9-7-2004 @ 4% or 8% as the case may be on the stocks of finished goods lying in stock on the date of filing declaration. The said plea of department was accepted by Revisionary Authority vide Order No. 990/06 dated 21-11-2006 mentioned above. In the said case party had not opted for clearing goods under Notification No. 29/2004-C.E., dated 9-7-2004. Whereas in the present case applicant party has opted for simultaneously availment of both the Notifications Nos. 29/04-C.E., 30/04-CE., both dated 9-7-2004. This fact is not disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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