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TMI Blog2012 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of duty through Cenvat Account with an intent to claim rebate of duty in respect of the said export consignment cleared in terms of Rule 18 of the Central Excise Rules, 2002. They further stated that they came to know that there was no provision for an EOU to claim rebate of duty under Rule 18, however after receipt of Export documents duly endorsed by the Custom authorities, they filed a refund claim of Rs. 38,69,621/-. The adjudicating authority found the claim not as per law hence issued a Show Cause Notice which has culminated into issuance of the impugned Order-in-Original wherein the adjudicating authority rejected the said refund claim. 3. Being aggrieved with the order of the Adjudicating Authority, the Applicant party filed the appeal before Commissioner (Appeal) who after due consideration of the facts as mentioned therein rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant, party has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following main grounds as per A and Supplementary grounds as per B below :- (A) 4.1 It is submitted that before the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther case laws relied upon :- (i) 1994 (73) E.L.T. 401 (CEGAT) - M/s. Maruti Udyog Ltd. v. C.C.E. (ii) 1994 (73) E.L.T. 835 (CEGAT) - M/s. Kirloskar Oil Engines Ltd. v. C.C.E. (iii) 1994 (74) E.L.T. 344 (CEGAT) - Natraj Paints Ltd. v. C.C.E., Bom. (iv) 2000 (118) E.L.T. 271 (CEGAT-LB) - Breach Candy Hospital & Research Centre v. C.C.E., Bom. (v) 1991 (53) E.L.T. 105 (CEGAT) - Vijaylamxi Bottler (P) Ltd. v. C.C.E. (vi) 1991 (53) E.L.T. 398 (CEGAT) - Advance Paints Pvt. Ltd. v. C.C.E. (vii) 1991 (53) E.L.T. 558 (Government of India) - Shantilal & Bhansali. (viii) 1990 (48) E.L.T. 569 (CEGAT) - Kopran Chemicals Co. Ltd. v. C.C.E. (ix) 1998 (104) E.L.T. 669 (CEGAT) - Indian Metal and Ferro Alloys Ltd. v. C.C.E. (x) 1995 (78) E.L.T. 682 (Tri.) - Transformers & Electricals Kerala Ltd. v. Collr. of Cus., Cochin. 4.7 Without prejudice to aforesaid, it is submitted that it is a well settled legal position that if the exports are made on payment of duty in Cenvat, refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, merely producing the goods as a 100% EOU may not give the effect of exemption until the same goods were not clear for export. However, Government of India vide insertion of Section 5A(1A) inserted w.e.f. 13-5-2005 stated that where an exemption from the whole of duty of excise provided under Section 5A(1) in respect of any excisable goods have been granted absolutely the manufacturer of such excisable goods shall not pay the duty of excise of such goods. In the Applicant's case, the exemption has been granted conditionally not absolutely, hence, the option is with the Applicants to pay the duty or not on the clearance of export goods produced in their premises. The Applicants rely upon the decision made the Hon'ble Mumbai Tribunal in the matter of M/s. Bombay Dyeing and Manufacturing Co. Ltd. v. C.C.E., Mumbai [2001 (135) E.L.T. 1392 (Tri.-Mum.) vide the above judgment the Hon'ble Tribunal has decided that if the exemption is conditional, there is an element of option. The said judgment is also maintained by the Hon'ble Supreme Court of India reported under [2005 (179) E.L.T. 276 (S.C.)]. 4.5 In the matter of M/s. Techno Submersible Pumps Pvt. Ltd. v. C.C.E., Ahmedabad [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Order No. 886/06, dated 29-9-2006 in the matter of M/s. A.A. Cotton Mills, Salem vide the above judgment the Hon'ble Joint Secretary has held that core aspect in determination of rebate claim is the fact of manufacture and payment of duty thereon and its subsequent export. In case this fundamental requirement is met, other attendant procedural requirements can be condoned. 5. The case was listed for personal hearing on 3-2-2011 was attended by Shri R.K. Sharma, Sr. Counsel attended on behalf of the Applicant and re-iterated the ground of the Revision Application. 6. Government has considered written submission of the applicant and also perused the orders passed by the lower authorities. 6.1 Government notes that in this case matter involves a basic and main disputed issue that as to whether an EOU can export its goods on payment of Central Excise Duty and then claim the rebate of duty paid an exported goods. The Applicant has taken above stand and has 1st made meaning of applicable statute with chosen citations, but what Government thinks proper is that the simple and plain meaning of the wordings are to be strictly adhered to. This principle is based on the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, unconditional without any string attached to it. 9. The only proviso to this Notification is that the exemption is not applicable to such goods if brought to any other place in India. This means that this exemption is not available to the goods cleared for home consumption. There is no condition of exemption from payment of duty for exported goods. Hence this Notification No. 24/2003-C.E., dated 31-3-2003 is absolute, and unconditional and rightly covered under Section 5A(1A) of Central Excise Act, 1944 which reads as under : "(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon : Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured in a free trade (i) brought to any other place in India; Zone or a special economic zone] a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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