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TMI Blog2012 (10) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... es are that the applicant M/s. Sabare International Ltd., Noida availed Cenvat credit on inputs used in the manufacture of final product as per provisions of Cenvat Credit Rules, 2004. The Applicant exported the above finished products home furnishing and made ups under the claim of rebate as per provisions of Rule 18 of the Central Excise Rules, 2002. These items were exported under claim of duty Drawback scheme. Subsequently after export of the said goods the Applicants filed rebate claim in respect of duty paid on the exported goods. The Assistant Commissioner, Central Excise, Division-I, Noida, who later on issued three notices to Show Cause proposing to disallow the rebate claimed by the Applicants on the ground that the rebate has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not being us and lying stagnant and unutilized. In order to utilize the same the Applicants discharged duty liability on Made-ups out of Cenvat credit accumulated. Since the Applicant had not availed Cenvat credit on inputs used in the manufacture of Made-ups it also availed duty Drawback in respect of Central Excise duties as well as Custom duties. The Applicant's argument was simply that full Drawback is admissible to them as the benefit of Cenvat has not been availed on inputs used in the manufacture of Made-ups. 4.2 The provisions of Drawback Rules as applicable during the relevant period vide Notification No. 81/2006-Cus. (N.T.), dated 13-7-2006 provides that Drawback is to be denied in such cases where the Applicant simultaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance or reduction of amount of allowable Drawback and not the rebate of duty as claimed by the Applicant. Therefore the action of the department is unfair and beyond the scope of law. The notice to show cause should accordingly be dismissed instantly. 4.5 If for the sake of argument if it is admitted that rebate is not admissible the department cannot with hold the amount of duty paid by the notice on the export of goods namely. Simultaneously with the rejection of the claim the department should have allowed the Applicants to take the amount of duty paid on the export goods as no duty is payable on the exports of goods as per provisions of Rule 19 of Central Excise Rules, 2002. Further wherever duty is paid under Rule 18 of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rves that the applicant had exported the goods under claim of Drawback and subsequently, filed six rebate claims. In three cases the claims were rejected and in other three cases, Show Cause Notices were issued for demand of already sanctioned rebate claims on the ground that double benefit of rebate and Drawback availed on both Customs and Excise portion cannot be given simultaneously. Adjudicating authority disallowed all the three rebate claim and amount already sanctioned was ordered to be recovered. Commissioner (Appeals) upheld the Orders-in-Original. 8. Government observes that the it is undisputed fact that the applicant had availed Drawback of both Customs and Excise portion. In terms of Notification No. 68/2007-Cus. (N.T.), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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