9911796707
TMI Blog2012 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 2002. The claim was settled and sanctioned rebate of Rs. 2,14,483/- in cash and balance amount of Rs. 6530/- was allowed by way of credit in their Cenvat Account. The respondent also claimed rebate of Rs. 3,68,229/- in respect of goods exported vide ARE No. 2/07-08 dated 6-6-2007, 3/07-08 dated 19-6-2007 and 4/07-08 dated 27-6-2007. 2.2 It was subsequently noticed that the claimant had been operating as Export Oriented Unit (EOU). This fact was not reflected in any of the documents submitted alongwith the rebate claim. It was further found from the Customs (EOU) file of the claimant that de-bonding of duty free goods procured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 In the instant case, export of fully exempted Stainless Steel Utensil were made by a unit on 22-5-2007 which was earlier EOU and under process of de-bonding with the Development Commissioner, having applied for de-bonding at the material time. Customs de-bonding was completed on 26-4-07. Exports of exempted products took place on 22-5-2007. Development Commissioner allowed de-bonding on 1-6-2007. The exported produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 5. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. The respondent filed their counter reply dated 29-1-2011 and made the following submissions :- 5.1 It is submitted that the impugned order of the Commissioner of Central Excise (Appeals), Pune is ex facie legal and correctly given based on the actual facts and applicable laws and rules of the Central Excise Act and the rules made thereunder. 5.2 It is submitted that we were bound in law to pay duty on the raw material procured under Notification No. 24/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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 applications on the ground stated in para 4 above. 9. Government notes that in the instant cases exported goods were fully exempted from payment of duty in terms of Notification No. 24/2003-C.E., dated 31-3-2003, as the exports were made by 100% EOU which was still in the process of debonding. The goods were wholly exempt from duty of excise even for home consumption in terms of Notification No. 10/2006-C.E., dated 10-3-2006. In view of these notifications, the goods were exempted from whole of duty of excise unconditionally and therefore no duty was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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