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TMI Blog2012 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... w :- S. No. Revision Application No./Date Applicant Respondent RA filed against O-I-A Rebate Amount 1. 198/125/ 09 C.C.E. Pune-III M/s. Chef Set Houseware Pvt. Ltd. P-III/43/09 dated 23-3-2009 Rs. 2,21,013/- 2. 198/126/ 09 C.C.E. Pune-III M/s. Chef Set Houseware Pvt. Ltd. P-III/44/09 dated 23-3-2009 Rs. 3,68,229/- 2. Brief facts of the case are as under :- 2.1 M/s. Chef Set Houseware (I) Pvt. Ltd., Gat No. 605/1, Pirangut, Tal. Mulshi, Pune 412 111 (hereinafter referred to as The Claimant ) holders of Central Excise Registration No. AABCC1896QXM001, are the manufactures of excisable goods viz. table, kitchen and other household article made of SS Steel and Aluminium falling under Ch. H. No. 73239390 76151990 resp. of the CETA, 1985, and exported the goods on payment of duty vide ARE-1 No. 01/07-08 dated 22-5-2007 and thereafter claimed rebate of the same. The assessee claimed rebate amounting to Rs. 2,21,013/- (Rs. 2,14,575/- basic + Rs. 4292/- Ed. Cess + Rs. 2146 SHE cess), under the provisions of Rule 18 of Central Excise Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecover the said cash rebate of Rs. 2,14,483/- being erroneous refund alongwith interest from the claimant. The notice also proposed to disallow the refund of Rs. 6530/- allowed by way of credit in their Cenvat account, as erroneous. 2.5 In view of the above, the adjudicating authority vide Order-in-Original No. P-VI/Rebate/267/CEX/2008 dated 30-6-2008, ordered to recover of Rs. 2,14,483/- which was erroneously refunded vide earlier Order-in-Original No. PVI/Rebate/160/CEX/07 dated 25-9-2007, alongwith interest as applicable from the claimant under Section 11A(1) and 11AB(1) respectively of Central Excise Act, 1944, and directed the claimant to deposit the said amount alongwith interest in the Government account. Also disallowed the Cenvat credit of Rs. 6340/- duty, Rs. 127/- Education Cess and Rs. 63/- SHE Cess, which was allowed by way of Cenvat credit vide earlier order-in-original No. PVI/Rebate/160/CEX/07, dated 25-9-2007, and directed the claimant to reverse the said amount from their Cenvat Account. 3. Being aggrieved by the said orders-in-original, respondent filed appeal before Commissioner (Appeals) who allowed the appeals vide above orders-in-appeals. 4. Being aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s EOU the unit was exempted from payment of duty in terms of Notification No. 24/2003-C.E., dated 31-3-2003. The product was further exempted from payment of Central Excise Duty on manufacture and clearance of the said goods from DTA unit, either to DTA or export, vide Notification No. 10/2006, dated 10-3-2006, as amended. The claimant had no option but to avail the benefit of the absolute exemption in terms of sub-section (1A) of Section 5A of the Central Excise Act, 1944. 4.4 The claimant was not entitled for rebate of the amount debited in their Cenvat account as duty against the said exported goods. Such payment of duty was without authority of law. The goods exported were exempted from payment of duty even then claimant debited the amount equivalent to duty and cess from the balance lying in the Cenvat account is nothing but a mis-endeavour to encash the lapsed credit by way of rebate from the Government, showing it as unutilized credit. The claimant is not entitled to rebate of the amount debited in their cenvat account as duty against the exported goods. The applicant further craves leave to add, alter, amend, evidence or reference, if any needed as advised subsequently. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same were exempted from payment of Central Excise Duty under provision of EOU as well as under DTA hence the above said amount of duty paid has been correctly ordered to be refunded by the Deputy Commissioner of Central Excise, Pune-VI Division, by his order dated 25th September and the same has been upheld by the Commissioner (Appeals), Pune vide order-in-appeal No. P-III/43/09, dated 23-3-2009. 6. Personal hearing scheduled in this case on 7-12-2010 and 2-2-2011. Shri Surjeet Singh, Director of Company appeared for hearing on 2-2-2011 on behalf of the respondent who reiterated the written submissions made in their written counter reply dated 29-1-2011. Nobody appeared for hearing on behalf of applicant-department. 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. On perusal of records, Government observes that in these cases, Assistant Commissioner of Central Excise ordered for recovery of rebate claims initially sanctioned to the respondents. However, on an appeal filed by respondents, Commissioner (Appeals) allowed the rebate claims. Now department has filed these two revision applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise is granted absolutely, the manufacture has no option to pay the duty. The Notification No. 24/2003-C.E., dated 31-3-2003, is an exemption notification issued under Section 5A(1) of Central Excise Act, 1944, which exempts all excisable goods manufactured in an 100% Export Oriented Unit from whole of duty of excise leviable thereon. 10. In the instant case the goods were exported on 22-5-2007 which is after the date of said amendment. By virtue of this amendment and insertion of explanation in clause 5A(1A), the applicant cannot pay duty as the goods were exempted from payment of duty of excise. As such, the duty paid erroneously cannot be called as duty of excise but it becomes mere a deposit with Government as the applicant was not required to pay any duty in the instant case. So, the said erroneously paid duty is not rebatable under Rule 18 of Central Excise Rules, 2002. Since, Govt. cannot retain any amount which is not due to it, the amount so collected is allowed to re-credited in Cenvat Account. Government allows the applicant to take re-credit of said amount in their Cenvat Credit Account. The impugned order-in-appeal is modified to this extent. 11. The revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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