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TMI Blog2012 (10) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... t documents for the rebate of duty paid on export of re-engraved Used Printing Cylinders on the ground that they have cleared the said goods under Rule 18 of the Central Excise Rules, 2002 on payment of Central Excise duty. Applicants availed cenvat credit on inputs, capital goods & input services. In the process of manufacture & printing of Laminates, Applicants used engraved rotogravure printing cylinders for imparting various designs on the flexible plastic film. The said cylinders were procured from Acuprint systems. Taloja, one of their own Division, on payment of duty & the Cenvat credit is availed under capital goods. Applicants after use of the said cylinders for some time, in the year 2005-2006, had exported said engraved Printing Cylinders to Fine Chemicals Nigeria Ltd., Nigeria by ARE-1 No. 0304 dated 20-12-2005, 0040 dated 28-4-2005, 0296 dated 14-12-2005 & 0145 dated 22-8-2005 on payment of duty under claim of rebate under supervision of Central Excise officers and ARE-1 duty verified and signed by Range Superintendent and Inspector of the Central Excise Rules, 2002. The duty was paid on the transaction value at the rate applicable at the time of export. Same amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be reversed or duty was required to be paid on the used capital goods. (iii) The case law of Sterlite Industries Ltd. is distinguishable on facts. Applicants submit that order of Commissioner (Appeals) is traversed beyond Show Cause Notice and the Order-in-Original & therefore legally not sustainable. While distinguishing the Sterlite case the Commissioner (Appeals) stated that in the said case, the Applicants had brought "used aluminium casting machine" on payment of duty and had exported the same "used aluminium casting machines". In fact in the instant case also the Applicant had procured the printing cylinders on payment of duty, availed the Cenvat credit thereon and exported the same on payment of duty. Therefore why the Sterlite case is not applicable in the instant case has not been explained in the impugned order. It is settled law by the Apex Court that the order of adjudication/appellate authority cannot be beyond the Show Cause Notice as held in the case of Hindustan Polymers v. C.C.E. - 1999 (106) E.L.T. 12 (S.C.) and Saci Allied Products - 2005 (183) E.L.T. 225 (S.C.). Therefore the order of Commissioner (Appeals) is liable to be quashed & se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods under sub-rule (5) and (5A). It will be ridiculous to interpret that for the purpose of Cenvat it is duty and for the purpose of export it is not duty and therefore cannot be refunded/rebated. 4.4 Respondent erred in distinguishing the judgment in the case of Sterlite Industries without giving any reference as to how the same is different. Applicant submits that in the case of Sterlite also the very same issue was before the Joint Secretary as can be seen from para 6 of the said order which read as follows : (a) Whether the reversal of an amount equal to the credit availed in respect of additional Customs Duty (CVD) paid for the capital goods can be treated as duty under the provisions of Rule 18 of the Central Excise Rules, 2002. (b) Whether the capital goods when cleared for export from the premises other than the actual factory or warehouse of the manufacturer are eligible for rebate. (c) Whether the clearance of the machine after having been used by the claimant for over 8 years can be called as removal "as such". The Joint Secretary clearly held based on the Board Circular No. 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Central Excise & the said cylinders were exported directly from factory under supervision of Central Excise officers & the appropriate duty has been paid under Central Excise invoice on the goods exported. Therefore, there is no contraventions of any conditions under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as alleged in the Show Cause Notice." 4.6 Respondent erred in rejecting the rebate claim without considering the documents on records as well as the submissions made by the Applicants. Applicants submitted that the aforesaid export has been made under ARE-1 duly verified and signed by the Range Superintendent and Range Inspector certifying the correctness and the payment of duty at the time of clearance at the factory for export. The said consignment has been in fact exported and Applicants have submitted the proof of export to the concerned authorities. It is settled law by the Tribunal that the rebate is not deniable even if the goods are exported from the place other than the factory as held in the case of : ● C.C.E. v. Gupta Soaps - 1999 (111) E.L.T. 720 ● R.S. Impex I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts Ltd. v. C.C.E. - 1999 (112) E.L.T. 765 (S.C.) ● Ranade Micronutrients Ltd. v. C.C.E. - 1996 (87) E.L.T. 19 (S.C.). Therefore, the order of the Respondent passed with total disregard to the Board circulars which is binding on the adjudicating authority, is liable to be quashed & set aside. 4.9 Respondent erred in rejecting the rebate claim on the ground that 'duty' paid under cenvat credit is not 'duty' as defined under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 for the purpose of rebate. Applicants submit that Explanation I to the said Notification reads as follows :- "Explanation I - 'duty' for the purpose of this notification means duties of excise collected under the following enactments, namely (a) The Central Excise Act, 1944. (b) The additional duties of excise (Goods of Special Importance) Act, 1957. (c) ....................... (d) ....................... (e) ....................... (f) ....................... (g) Education cess on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of M/s. Micro Ink, Ispat Industries wherein GOI Orders were upheld. 6. Government notes that the case matter under revision involves rebate claim on exported used aluminium engraved (printing) cylinders after payment of duty under (discharged under) Rule 3(5) of Cenvat Credit Rules, 2004 on the (claimed) "transaction value". In background of above factual position the claimed rebate stands denied by the lower authorities. 7. Government observes that the issue whether reversal of equal amount of cenvat credit availed on inputs/capital goods under Rule 3(4) of Cenvat Credit Rules, 2002 is to be treated as payment of duty for the purpose of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, has already been decided by Government vide GOI Order No. 933/06, dated 31-10-2006 in the case of M/s. Unitech Inc., Mumbai which was further allowed in subsequent GOI Order No. 326/10-CX., dated 18-2-2010 in the case of M/s. Ispat Ind. Ltd., Raigarh. In the said orders it was held that an amount reversed under Rule 3(4) of Cenvat Credit Rules, 2002 when inputs are removed as such, is to be treated as payment of duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been held that such clearances of "used" capital goods from the factory of their uses which is other than the factory of manufacture of said capital goods when exported are eligible for rebate. 9. Government in this case matter is also of the same view as there is nothing on record to suggest that valuation of impugned used capital goods on said "transaction value" were challenged or reviewed by the jurisdiction authorities so as to establish that above value cannot be termed as "fair" for the purpose of assessments for levy and payments of due Central Excise duties. 10. Government, therefore, keeping in view that when exporter herein has submitted the proof that said goods have actually been exported, the substantial benefit of due rebates should not be denied specifically when there is no such exceptions or categorical bar as having been stipulated in the applicable provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as issued under Rule 18 of the Central Excise Rules, 2002. Government therefore holds that rebate claim is admissible in the instant case to the applicants under Rule 18 of Central Excise Rules, 2002 read with Notification No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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