9911796707
TMI Blog2010 (2) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... These revision applications have been filed by M/s. Nahar Industries Enterprises, Lalru and M/s. Nahar Spinning Mills Ltd. M D Unit, Lalru, Dera Bassi against the orders-in-appeal as mentioned in column no. 7 of the table passed by the Commissioner (Appeals) Customs Central Excise Chandigarh. TABLE Sl. No File No. Name of the Applicant Name of the Respondent Amount of Rebate (Rs.) Period of dispute Number Date of Order-in-Appeal (O.I.A.) 1 2 3 4 5 6 7 1. 195/151- 157/09-RA M/s. Nahar Industrial Enterprise Ltd. Lalru CCE Chandigarh 15,26,592/- 2007-08 608- 641/CE/CHD/08 12-12-08 2. 195/158- 183/09-RA M/s. Nahar Industrial Enterprises Ltd. Lalru CCE Chandigarh 14,78,278/- 2007-08 644- 673/CE/CHD/08 dated 16-12-08 3. 195/183- 201/09-RA -do- -do- 2007-08 -do- 4. 195/208-09/09-RA -do- -do- 17,99,800/- 2004-05 15-16/CE /CHD/ 2009 28-1-2009 5. 195/586/ RA-CX. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their cenvat account. In the first type of cases, where 4% cash rebate was allowed by the original adjudicating officer, the department filed the appeals with the Commissioner on the following grounds : 3.1 That while working under Notification No. 30/2004-C.E., they are neither required to pay duty nor they can pay duty on the goods being manufactured and cleared by them as they are not availing credit of inputs. 3.2 That Notification No. 29/2004-C.E. prescribes an option of clearance of goods on payment of duty 4% adv. for pure Cotton goods and @ 8% adv. for other goods and Notification No. 30/2004-C.E., provides full exemption from payment of Central Excise duty subject to the condition that Cenvat credit of duty paid on inputs is not availed. These notifications are independent and there is no restriction on availing both simultaneously. However, the respondent voluntarily has not taken Cenvat credit of duty paid on inputs and the finished goods manufactured from these inputs should be cleared at Nil rate of duty in terms of Notification No. 30/2004-C.E. 3.3 That the respondent opted for full exemption from payment of Central Excise duty under Notification No. 30/2004- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by these orders-in-appeal, the applicants have filed these revision applications on the following grounds : 6.1 The Respondent wrongly rejected the rebate claim of Central Excise Duty actually paid by the Applicant @ 4% on exports made out of India. Rule 18 of the Central Excise Rules specifically refers to rebate/refund of actual duty paid by the exporter on the goods exported out of India irrespective of applicable or effective rate of duty on such goods. Therefore, the impugned order is contrary to the provisions of Rule 18 of the Central Excise Rules; hence liable to be set aside. 6.2 It is further submitted that the department has misunderstood the concept of availing any exemption notification. It is well settled proposition of law that claiming of any exemption notification in respect of any specific clearances is a matter of choice with the assessee, which cannot be forced. Therefore the actual duty paid on the goods exported out of India is liable to be refunded in cash. 6.3 The Central Board of Excise and Customs (hereinafter referred to as C.B.E.C.), further strengthens the aforesaid stand taken by the applicant in respect of rebate of duty on exports, C.B.E.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in the Tariff is not taken away or deleted by issue of an exemption Notification. Exemption notification is in nature of benefit conferred upon the assessee, and he has a right to avail or not to avail the same. Therefore, saying that the rate of duty prescribed in the tariff is not duty is incorrect. Hence, the impugned order is liable to be set aside. 6.6 That the issue in respect of export of goods after payment of Central Excise Duty at tariff rate in spite of availability of exemption notification has been considered by the Hon ble Tribunal on numerous occasions. The Tribunal in one of the recent decisions i.e. Bharat Chemicals v. CCE, Thane, 2004 (170) E.L.T. 568 has specifically held that exporter is entitled for rebate of Duty actually paid on exports and it is not relevant whether any exemption notification is availed or not. The Tribunal in another case i.e. CCE v. Noel Pharmaceuticals, 1999 (113) E.L.T. 66 also appreciated that exporter is entitled for rebate of actual amount of duty paid on exports and credit of Duty cannot be restricted to effective or applicable rate of Duty given under a particular Notification. In the light of these decisions of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant has not availed the cenvat credit on the inputs, the respondent was required to clear the final foods under Notification No. 30/2004-C.E., dated 9-7-2004 i.e. by availing full exemption of duty. Here it is submitted that as emanating Form ARE-I filed by the applicant, the applicant is claiming drawback of customs portion of duty under Customs Central Excise Duties Drawback Rules, 1995. One of the conditions for claiming drawback under these Rules is that the claimant must not have availed Cenvat credit of duty paid on inputs. 6.12 It is submitted that non-availment of Cenvat credit is the condition for claiming drawback of duty. Therefore, to say that non-availment of Cenvat credit leads to availment of Notification No. 30/2004-C.E., dated is without any basis. Here it is submitted that when any exemption notification is issued, the assessee is at liberty to opt for or not opt for that notification. An assessee cannot be forced to compulsory avail the notification, if the notification is not suited to him therefore merely satisfying the condition of Notification No. 30/2004-C.E. does not mean that respondent is bound to avail the said Notification. It has further been all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if on date of entitlement there is no illegality or invalidity in taking credit of such Modvat/Cenvat credit, right to utilize such credit against future liability towards duty become indefeasible. 6.16 Without prejudice to the submissions made above, even in the worst case the Applicant can not be denied cash rebate of the duty paid to the extent of 4%. It is submitted that the Revenue has relied upon the decision of the ld. Joint Secretary Final Order 990/2006 dated 21-11-2006. It is pertinent to note here that the Revenue has intentionally picked up a paragraph from the Order whereas the order has to be read wholly and not in parts. In the said Order, the ld. Joint Secretary has actually allowed the rebate in cash to the extent of 4%. The above said order of ld. Joint Secretary granting cash rebate to the extent of 4%, has not been challenged by the Revenue and has attained finality. Moreover, cash rebate to the extent of 4% has been always granted by the Revenue at all levels starting from adjudicating stage. Therefore, at this stage the Revenue is not permitted to deny the total cash rebate. 6.17 The action of the Revenue is barred by the Doctrine of Estoppel. Once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings. Sh. Balbir Singh Rupender Singh, Advocates appeared on 11-8-2009 on behalf of the applicant and reiterated their grounds of revision application. A written brief was also submitted. 8. Government has considered both oral and written submissions of both the applicants and the respondents and also perused the orders passed by the lower authorities. 9. From the perusal of records. Govt. observes that during the relevant period, the yarn manufactured by the applicants were chargeable to central excise duty @ 16% in terms of Chapter 52 at the Central Excise Tariff Act, 1985. The Central Govt. has issued the exemption Notification No. 29/2004-C.E., dated 9-7-2004 for granting partial exemption by which the goods manufactured are chargeable to duty 4% or 8%, and Notification No. 30/2004-C.E., dated 9-7-2004 granting full exemption from payment of central excise duty, subject to the condition-that no cenvat credit is taken on the inputs consumed in the manufacture of final product. The applicants were availing both the aforesaid Notifications simultaneously in terms of clarification issued by the C.B.E.C. vide its Circular No. 795/28/2004 dated 28-7-2004. The basic conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of notification No. 29/2004-C.E., dated 9-7-2004 is availed and similarly, for goods in respect of which benefit of Notification No. 30/2004-C.E., dated 9-7-2004 is availed. The C.B.E.C. further issued a Circular No. 845/3/2007-CX, dated 1-2-2007 to clarify the provision of simultaneous availment of Notification Nos. 29/2004-C.E. and 30/2004-C.E., both dated 9-7-2004 wherein it has been clearly mentioned that non-availment of credit on inputs is a precondition for availing exemption under this notification (30/2004-C.E., dated 9-7-2004) and if manufacturers avail input cenvat credit, they would be ineligible for exemption under this notification (30/2004-C.E., dated 9-7-2004). However, Board further allowed the availment of proportionate credit on the inputs utilized in the manufacture of goods cleared on payment of duty (under Notification No. 29/2004-C.E., dated 9-7-2004) which should be taken at the end of the month only. Government observes that the purpose of this clarification was only to check that the manufacturer should not claim cenvat credit on the inputs and avail exemption under Notification No. 30/2004-C.E., dated 9-7-2004 simultaneously. For availing Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by department and the same has attained finality. Government further observes that in a number of cases of the same applicant, 4% cash rebate was allowed to the applicant who had paid duty at Tariff Rate (16%) by the original adjudicating authority. Against these orders, the applicants have gone in appeal who in certain cases allowed the rebate in full and in some other cases, the Commissioner (Appeals) upheld in order-of-original adjudicating authority allowing 4% rebate in cash. In such cases, either the department or the applicants have filed revision applications with the revisionary authority. Even in these cases, the department has not challenged the allowing of cash rebate of 4% to the applicants. Hence, this is issue has attained finality and the raising of this issue is not permissible in terms of the judgments in the case of Marsons Fan Industries v. CCE, 2008 (225) E.L.T. 334 (S.C.) and Indian Oil Corporation v. CCE, Guntur - 2007 (210) E.L.T. 543 (Tri.-Bang.) and Eicher Motors Ltd. v. CCE, Indore - 2001 (129) E.L.T. 734 (Tri.-Del.) 14. Following the ratio of the above said order of the revisionary authority as upheld by the Hon ble High Court of Punjab and Har ..... X X X X Extracts X X X X X X X X Extracts X X X X
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