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TMI Blog2013 (4) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (2009 (1) TMI 167 - GOVERNMENT OF INDIA) the said issue was decided by Government vide its Order No. 4-6/2009, dated 16-1-2009 holding that rebate of duty paid on materials used in the manufacture of goods exported in discharge of export obligation under DEEC scheme was not admissible in term of condition No. (v) of Notification No. 43/2002-Cus., dated 19-4-2002 as amended vide corrigendum dated 29-11-2002. The said notification was replaced by Notification No. 93/2004-Cus., dated 10-9-2004 and condition (v) of said notification was also amended. As per amendment dated 29-11-2002 in Notification No. 43/2002-Cus. the exporter cannot claim rebate under Rule 18 of the duty paid on materials used in the manufacture of resultant products. But in the instant case, applicant is claiming rebate on the duty paid as the finished goods which is not contrary to the amended condition (v) of the Notification No. 43/2002-Cus. Hence applicant is entitled for the rebate of duty.” - Government notes that the amended condition (v) in both the Customs Notification’s i.e. 43/2002-Cus. and 93/2004-Cus. is exactly same - Government finds no infirmity in orders of appellate authority and hence, upho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. India Oil Corporation (IOC), Jawhar Nagar on the invoice indicating that M/s. IOC i.e. supplier of inputs, is entitled for benefit as mentioned in para 8.3 of the Foreign Trade Policy. It is evident from the invoice that they (IOC) have availed benefit of said deemed export. So, the respondents are not entitled under Rule 18 of the Rules to rebate of duty on inputs used in manufactured of exported goods. Moreover, benefits in respect of deemed exports provided under para 8.3 of the Export-Import Policy do not allow any rebate under Rule 18 of the Rules in respect of duty suffered in inputs and thus, rebate as allowed by the adjudicating authority under the impugned orders was not admissible to the respondents. (ii) That since the respondents have exported the goods in discharge of export obligation under advance authorization and as per condition (V) of Notification No. 93/2004-Cus., dated 10-9-2004 pertaining to scheme of advance authorization mentioned above, the respondent is not entitled for rebate claim of duty paid on inputs used in the manufacture of exported goods under Rule 18 of the Rules. 3. After due consideration of submissions of both parties, Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the FTP provides that supply of goods will be eligible for refund of terminal excise duty in terms of para 8.3(c) of FTP provided recipient of goods does not avail CENVAT credit/rebate on such goods. Thus, while for the supplier to be eligible for deemed export benefit under the FTP it is a pre-condition that the recipient of the goods should not avail the benefit of CENVAT or rebate of the duty paid on such goods, for the recipient to be eligible for the rebate under Rule 18, it is not a precondition that the supplier should not have availed the benefit of deemed export benefit under the FTP. Thus, for this reason also, the impugned order of the Commissioner (Appeals) is liable to be set aside. There is no basis or evidence in the present case to indicate that the supplier of the inputs viz., IOCL has indeed availed the benefit of deemed export benefit under the FTP in respect of the suppliers made to the applicant. The Commissioner (Appeals) in the impugned orders has without any basis concluded that the supplier has availed the benefit of deemed export benefit. The applicant specifically submit that neither IOCL nor the applicant has availed any deemed export benefit in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 735 (T) (iv) CCE v. Oswal Agro Mills Ltd. - 1999 (112) E.L.T. 326 (T) (v) Mardia Chemicals Ltd. v. CCE - 2006 (199) E.L.T. 110 (T) (vi) Dome Bell Investment (P) Ltd. v. CCE - 1999 (34) RLT 194 (T) (vii) CCE v. Dome Bell Investment (P) Ltd. - F.O. No. 79/2000/NB/(DB), dated 7-4-2000 (viii) CCE v. Aggarwal Rubber Products Ltd. - 1997 (22) RLT 928 (T) 5. Personal hearing was scheduled in this case on 2-5-2011 and 28-2-2012. Personal Hearing was attended by Shri Ajay Khanna and Shri Ganesh Bapu TR, Advocate on behalf of the applicant who reiterated the grounds of Revision Application. They further relied upon their written submission dated 28-2-2012, wherein, apart from contents of grounds of Revision Applications, they mainly stated that benefit of Notification No. 93/2004-Cus. has not been availed by the applicants at all since the inputs have been procured on payment of duty from indigenous sources after invalidating the advance authorization. Thus, the condition of Notification No. 93/2004-Cus. will never be applicable when import against advance authorization has not taken place. 6. The respondent department vide their letter dated 27-2-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case records and perused the impugned Orders-in-Original and Orders-in-Appeal. 8. Government notes that applicant exported the goods for discharge of their export obligation under advance authorization scheme under Notification No. 93/2004-Cus. They filed claims for rebate of duty paid on inputs used in the manufacture of said exported products. The original authority initially sanctioned rebate claims. However, the department reviewed the said orders and filed appeals before Commissioner (Appeals) who decided the case in favour of department. Now, applicant has filed these Revision Applications on grounds mentioned in para (4) above. 9. On perusal of records, it is observed that applicant has exported goods against the fulfilment of export obligation under Advance Authorization Scheme in terms of Notification No. 93/2004-Cus., dated 10-9-2004. The rebate claims were rejected for violation of condition (v) of the said Notification. To understand the issue, the said condition (v) is re-produced below :- Condition V that the export obligation as specified in the said licence (both in value and quantity terms) is discharged within the period specified in the said licence or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of Notification No. 93/2004-Cus. Applicant has accounted for the said exports toward discharge of export obligation under advance authorization and allowing them input stage rebate would amount to double benefit. Government notes that applicant has already availed one benefit by counting said exports towards his export obligations. So the authorities are justified in disallowing the benefit of input stage rebate in terms of condition No. (v) of said Notification. While formulating such type of export promotion scheme, the intention of the Government cannot to be deny the benefit of scheme, but at the same time intention cannot be to allow double benefit. When any provisions are specifically mentioned in any notification with relevance to Rule 18 or Rule 19, benefit of said rules are to be read in conjunction with said Notification/statute. Since para (v) of the Notification No. 93/2004-Cus. specifically put embargo on input stage rebate and the benefit of said notification is also availed in terms of completing his export obligation, it is in the spirit of this statute to deny the input rebate. As such, input stage rebate is not available to applicant for expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 in view of unamended condition (v) of Notification No. 43/2002-Cus. Hon ble High Court of Bombay vide its order dated 9-3-2006 in W.P. No. 606/2006 set aside the orders dated 30-5-2005 of Joint Secretary (Revision Application) and remanded the case for fresh consideration in accordance with law in the light of corrigendum dated 29-11-2002. In the remand proceedings Joint Secretary (Revision Application) held that- as per amendment dated 29-11-2002 in Notification No. 43/2002-Cus. the exporter cannot claim rebate under Rule 18 of the duty paid on materials used in the manufacture of resultant products. But in the instant case, applicant is claiming rebate on the duty paid as the finished goods which is not contrary to the amended condition (v) of the Notification No. 43/2002-Cus. Hence applicant is entitled for the rebate of duty. Government notes that the amended condition (v) in both the Customs Notification s i.e. 43/2002-Cus. and 93/2004-Cus. is exactly same and therefore ratio of above said judgment is squarely applicable to this case. 13. In view of above discussions, Government finds no infirmity in orders of appellate authority and hence, upholds the same. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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