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TMI Blog2012 (5) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bangalore are the respondents in the case matter. 2. Brief facts of the case are as under :- 2.1 M/s. Reva Electric Car Company Private Limited, No. 122-E, Bommasandra Industrial Area, Bommasandra, Bangalore 560 100 (hereinafter referred to as the assessee), are the manufacturer of "Electrical Cars" falling under chapter sub-heading 8703.90.10 of Central Excise Tariff Act, 1985. The assessee avails the benefit of concessional rate of duty of 8% BED with nil SED under Notification No. 6/2002-C.E., dated 1-3-2002 in respect of said cars cleared for home consumption. However for export of said cars not fitted with electrical batteries the assessee did not avail the concession of Notification No. 6/2002-C.E., dated 1-3-2002 and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its entirety. As para 3 of the circular it states that the rebate sanctioning authority shall refer the matter to the jurisdictional Assistant Commissioner/Deputy Commissioner in the case he feels duty payment was in excess. Here the sanctioning authority is also the jurisdiction Assistant Commissioner/Deputy Commissioner and he has taken a decision taking into account the fact that the duty was paid at a higher rate. 4.4 Refund of 8% duty would be admissible only in cash and remaining in CENVAT credit as the excess duty was paid through CENVAT debit. 4.5 If the said refund is granted to the assessee by way of cash, the same would amount to making him unjustifiable enrich. It is well settled principles of law that what cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith batteries are still entitled for exemption. Exemption Notification No. 6/2002-C.E., dated 1-3-2002 gives only a concessional rate of duty and does not give exemption from whole of the duty of excise payable on such cars. 5.3 Section 5A(1A) which speaks about denying the option as to not availing exemption notification reads as "(1A). For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods." (emphasis supplied). It is clear that restriction for payment of duty without opting for exemption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt II and the entire amount has to be given as rebate. The objection in the application in this regard there is a reference in the circular that the rebate sanctioning authority shall refer the matter to the jurisdictional Assistant Commissioner/Deputy Commissioner in the case he feels duty payment was in excess. As in the instant case the sanctioning authority is also the jurisdiction Assistant Commissioner/Deputy Commissioner and he has taken decision taking into account the fact that the duty was paid at the higher rate. 6. Personal hearing was scheduled in this case on 16-8-2009 & 16-9-2009. Shri Dharmendra Kumar Singh, Consultant appeared for hearing on 16-8-2009 on behalf of the respondents and reiterated the submissions as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on them are still battery powered road vehicles eligible for concessional rate of duty and therefore amount paid in excess of duty payable cannot be refunded in cash whereas respondent party is still contending that the concessional rate of duty is not applicable to the exported electric car without fitted batteries and therefore they have rightly paid the duty at tariff rate of 16% BED. They are also relying on C.B.E.C. Circular No. 510/06/2002-CX., dated 3-2-2000 wherein it was held that entire duty paid is to be rebated. In this regard, it is observed that notification No. 6/2002-C.E., dated 1-3-2002 specifies the concessional rate of BED @ 8% to "battery powered road vehicles". Further explanation to said entry reads as "battery powere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Any amount paid in excess of duty liability on one's own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon'ble High Court of Punjab & Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P&H) has decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled to refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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