9911796707
TMI Blog2012 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that the applicant have filed rebate claims with the adjudicating authority under Rule 18 of the Central Excise Rules, 2002 for duty paid on excisable goods exported out of India under Duty Free Import Authorization (DFIA) Scheme. They had filed relevant Shipping Bills, bills of lading, duplicate copies of invoice, original and duplicate copies of ARE-1s duly endorsed by the Customs and copies of BRC showing realization of export proceeds. After scrutiny, the rebate claims were sanctioned by the adjudicating authority vide the above impugned Orders-in-Original. 3. Being aggrieved by the said order-in-original, respondent Department filed appeal before Commissioner (Appeals), who allowed the same. 4. Being agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot deny the benefit claimed under the other independent scheme, until unless the scheme itself provides the appropriate officer to do so. As stated above, since there was no restriction under the notification issued under Rule 18 with respect to DFIA Scheme at the relevant time, the Revenue Department now cannot challenge the validity of the rebate sanctioning orders. 4.4 It is a settled position in law that 'duty' paid against exported goods is required to be refunded back either as 'drawback' or 'rebate'. In the present case applicant has paid duty on exports and claimed rebate under Rule 18 of the Central Excise Rules, 2002. 4.5 That condition (v) to the notification has been amended with retrospective effect (w.e.f. May 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit on such goods. Since the applicant has never imported inputs against the said authorization therefore, aforesaid restriction is not applicable on the applicant. 5. Personal hearing scheduled in this case on 26-7-2011 and 4-8-2011 was attended by Shri S.K. Tyagi, Superintendent on behalf of the respondent. The applicant vide their letter dated 4-8-2011 requested to decide the case in terms of Government of India Order No. 903/11-CX., dated 13-7-2011, as the matter in this case is similar. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Orders-in-Appeal. 7. On perusal of records, Government observes that the respondents M/s. Essel Foundaries (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Rule 19 of Central Excise Rules, 2002 or Cenvat Credit under Cenvat Credit Rules, 2004 in respect of material imported/procured against said authorization has not been availed. (hereinafter referred to as such facilities). From the reading of these provisions of Foreign Trade Policy and Customs notification it becomes clear that the Cenvat Credit will not be allowed if the material is procured against the Authorization. The applicant has stated in their submissions that they have not procured the inputs on payment of duty against Authorization and therefore they were eligible to take Cenvat Credit of duty paid on inputs. This is also not the department's case that the applicant has procured the materials against Authorization. 9.&ems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (No. 2) Act, 2009, in the Second Schedule (Section 93), amended Notification No. 40/2006-Customs dated 1-5-2006 retrospectively from the date of issue so as to allow the facility of rebate in respect of locally procured materials used in the manufacture of goods exported under the Duty Free Import Authorisation Scheme. The effect of this retrospective legislation is that Notification No. 40/2006-Cus., dated 1-5-2006 never prohibited rebate on export of goods under DFIA Scheme, if the Cenvat Credit of duty paid on imported/procured raw material have been availed. In this regard, the relevant Para M.9 under the Miscellaneous and Legislative Amendments of Explanatory Notes - Customs of Budget Bulletin 2009, is reproduced below :- "Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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