9911796707
TMI Blog2013 (3) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Rules, 2002 without payment of duty. However, applicant on their own cleared the said goods on payment of duty. In respect of ARE-1 9/26-7-2007 it was observed that quantity cleared for export was mentioned as 12+18 i.e. 30 bags whereas on the corresponding mate receipt No. 100/28-8-2007, and on the reverse side of shipping bill No. 7006173 dated 27-7-2007 the number of packages were mentioned as 47 bags. Further in respect of ARE-1 No. 9/26-7-2007 and 10/3-8-2007 it was observed that shipment of goods have not been clarified by the Customs authorities owing to the facts enumerated above. Two show cause notices dated 7-5-2008 and 14-10-2008 issued to the applicant were adjudicated by the adjudicating authority who rejected the said rebate claims in terms of Rule 19 of Central Excise Rules, 2002 and Not. No. 43/2001-C.E. (N.T.), dated 26-6-2007 read with Section 11B of Central Excise Act, 1944. A penalty of Rs. 5000/- was imposed under Rule 27 of Central Excise Rules, 2002 in each case. 3. Aggrieved by the said orders-in-appeal, applicant filed two appeals before Commissioner of Central Excise (Appeals) Pune-III, who vide impugned order-in-appeal, rejected the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 or Rule 19 of the Central Excise Rules, 2002 there is any specific provision made to debar the assessee from exporting the goods [manufactured out of the inputs procured without payment of duty under Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001] on payment of duty under claim of rebate. The said condition is inserted only in Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 by way of explanation. In such circumstances, it is clear that the said condition is the requirement to be completed to become eligible for exemption under the said notification and if the same is not fulfilled, the exemption under the said notification will not be available and in that case the inputs which are procured without payment of duty by claiming the exemption under the said notification will become ineligible for the said exemption and the manufacturer (who had procured the said inputs) will become liable to pay duty on the said inputs. Thus, at the most, the department can ask the manufacturer to pay duty on the inputs procured without payment of duty for not exporting the final products (manufactured out of the said inputs) without duty but in any circumstances, the department can't deny the rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority should not examine the correctness of assessment but should examine only the admissibility of rebate of the duty paid on the export goods covered by a claim. It has been further clarified that the rebate sanctioning authority has reasons to believe that duty has been paid in excess than what would have been paid, he shall inform, after granting the rebate, to the jurisdictional Assistant/Deputy Commissioner. The latter shall scrutinize the correctness of assessment and take necessary action, wherever necessary. The applicant is also relying upon the Board Circular No. 687/3/2003-CX., dated 3-1-2003 which clarifies that the duty paid through actual credit or deemed credit account on the goods exported must be refunded in cash. 5. Personal hearing was scheduled in this case on 3-2-2011, 10-5-2011 and 27-7-2011. S/Shri R.K. Sharma, Sr. Counsel, Dharmender Singh and Ranjeet Kumar Singh, Consultants appeared for hearing on 3-2-2011 on behalf of the applicants and reiterated the grounds of revision application. Nobody attended hearing on any of these dates on behalf of the respondent department. 6. Government has considered all the relevant case records, written/oral submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 19(3) of Central Excise Rules, 2002 notifies the conditions, safeguards and procedures for procurement of the excisable goods without payment of duty for the purpose of use in manufacture or processing of export goods and their exportation out of India. 9.3 Amendment to Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 vide Not. No. 10/2004-C.E. (N.T.), dated 2-6-2004. The following amendment was made :- "In the said notification - (a) For paragraph (vi) the following shall be substituted namely :- "(vi) the goods shall be exported on the application in form ARE-2 specified in Annexure and the procedures specified in the Ministry of Finance (Deptt. of Revenue) Not. No. 42/2001-C.E. (N.T.), dated 26-6-2001 (vide G.S.R. 471(E), dated 26-6-2001) shall be followed." (b) After explanation-I, the following explanation shall be inserted namely :- "Explanation II : for removal of doubt it is clarified that the goods manufactured or processed using excisable goods so procured without payment of duty under this notification shall be exported in terms of sub-rule (1) of Rule 19 of Central Excise Rules, 2002." 10. As per paragraph (vi) of notification, it is quite clear that goods shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that statute as clarified/elaborated for application vide C.B.E. & C. circulars are binding on Revenue/Departmental officers as held by the Hon'ble Supreme Court in case of Paper Products Ltd. v. Commr. of Customs - 1999 (112) E.L.T. 765 and in case of Collector of Central Excise, Vadodra v. Dhiren Chemical Industries Ltd. reported as 2002 (143) E.L.T. 19 (S.C.). 11. As regards applicant's plea regarding transfer of duty paid to consumer welfare fund, Government notes that applicant is a manufacturer exporter who had exported the goods on payment of duty instead of exporting goods under bond. As per Section 11B(2), proviso clause (d), duty of excise paid by manufacturer, if he had not passed on the incidence of such duty to any other person, the amount shall not be credited to welfare fund. So, the said amount paid on his own volition is required to be refunded in the manner in which it was paid. 12. Government observes that applicant had opted to work under Rule 19 by procuring raw materials duty free under Not. No. 43/2001-C.E. (N.T.) so, he was required to work under Rule 19(1) and export the goods under bond without payment of duty. The amendment made in said notification vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
