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TMI Blog2009 (11) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid at the time of clearance of goods - revision application succeeds - - - 404/2009-CX - Dated:- 5-11-2009 - Shri D.P. Singh, J. REPRESENTED BY : Shri T.S. Sarkar, for the Assessee. None, for the Revenue. [Order]. This revision application has been filed by the Commissioner Central Excise, Pune-II against the order-in-appeal No. P II/BKS/217/2006, dated 21-7-2006 passed by the Commissioner (Appeals) Central Excise, Pune-II. 2. Brief facts of the case are that M/s. Indira Gandhi Mahila Sahakari Soot Girni Ltd., Shivnakwadi, Tal. Shirol, Ichalkaranji are engaged in the manufacture of Cotton Yarn falling under Chapter sub heading No. 5205.11 and 5205.19 of the Schedule to the Central Excise Tariff Act, 1985. 2.2 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was alleged that the payment of duty made by the assessee for their export consignment was unwarranted and not eligible for any rebate claim. 2.4 The adjudicating authority vide order-in-original No. Ref/08/2006, dated 9-6-2006 rejected the refund claim of Rs. 75,280/-. 2.5 Being aggrieved by the said order, assessee preferred an appeal with Commissioner (Appeals-II) Central Excise, Pune, Commissioner (Appeal)-II) Central Excise, Pune-II vide order-in-appeal No. P-II/BKS/217/2006, dated 21-7-2006 has set aside the order of the adjudicating authority and held the rebate claim as admissible. 3. Being aggrieved by this order-in-appeal, the Commissioner has filed this revision application on the following grounds : 100% EOUs are govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From April, 2004 to July, 2004 we have cleared the cotton yarn on payment of Basic Excise Duty at the rate of 8% as prescribed under the Tariff. 4.2 However, the Government of India vide Notification No. 30/2004-C.E., dated 9-7-2004 has exempted the cotton yarn subject to the condition that the credit of duty paid on inputs used in or in relation to the manufacturer of the said cotton yarn is not availed. Whereas as per Notification No. 29/2004-C.E., dated 9-7-2004, the yarn manufacturer are given the option of paying the 4% Basic Excise Duty on the cotton yarn. 4.3 Accordingly, since our customers in India wanted the cotton yarn from us without payment of duty, we after July, 2004 are selling the cotton yarn manufactured by us to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, for the yarn manufactured in India two exemption Notifications are available viz. Notification No. 29/2004-C.E., dated 9-7-2004 and Notification No. 30/2004-C.E., dated 9-7-2004. As per the Notification No. 29/2004-C.E., dated 9-7-2004 the yarn can be cleared on payment of Central Excise duty (at the rates prescribed in the said Notification) whereas as per Notification No. 30/2004-C.E., dated 9-7-2004 the yarn can be cleared without payment of Central Excise duty subject to the condition that no CENVAT credit of duty paid on the inputs used in or in relation to the manufacture of the said yarn is availed. The C.B.E. C. vide its Circular No. 795/28/2004-CX., dated 28-7-2004 and No. 845/3/2007-CX., dated 1-2-2007 has also clarified tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 9-7-2004 is granting conditional exemption and hence we have every right to give up the exemption under the said Notification while clearing the cotton yarn for export and to pay Central Excise duty thereon as per Notification No. 29/2004-C.E., dated 9-7-2004. 4.8 We also rely upon the Hon ble Tribunal s decision in the case of C.C.E. v. Global Overseas - 2005 (192) E.L.T. 334 whereunder in similar circumstances involved in our case the rebate of duty paid on the exported goods is held admissible under Rule 18 of the Central Excise Rules, 2002. 4.9 We submit that, there are various decisions where under it has laid down that once the duty is paid on the goods cleared for export and there is not dispute about the fact that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the CESTAT within the prescribed period. Under the power vested vide Section 35EE of the Central Excise Act, 1944, Govt. condone the delay in filing the revision application. 8. Govt. further observes that the goods were cleared for export vide ARE-119105.06, dated 10-8-2005 i.e. after the insertion of Section 5A(1) w.e.f. 15-5-2005 under which the respondent were not required to pay duty if the goods were exempted under Notification No. 30/2004, dated 8-7-2004. Govt. observes that there were two options before the respondents to avail benefit of Notification No. 30/2004 or 29/2004 separately or simultaneously as per C.B.E. C. Circular on the subject. There is nothing on record whether the respondent has filed any declaration regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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