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TMI Blog2013 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ndrapur Magnet Wires (P) Ltd. Vs. Collector of C. Excise, Nagpur (1995 (12) TMI 72 - SUPREME COURT OF INDIA) wherein held that the claim for exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of the duty paid on the inputs used in manufacture of these goods. Also see Commissioner of C. Ex., Mumbai Vs. Bombay Dyeing & Mfg. Co. Ltd. reported in 2007 (2007 (8) TMI 2 - Supreme Court). Thus because the petitioner in the present case had paid the excise duty subsequently to issuance of show cause notice and deposited the CENVAT credit, he was eligible the benefit of drawback - In favour of assessee. - Writ Petition No.5894/2011 - - - Dated:- 15-4-2013 - S. K. Gangele And G. D. Saxena, JJ. For the Appellants : Shri M P Devnath and Shri T C Singhal, Advs. Forr the Respondents : Shri S A Dharmadhikari, Miss Anuradha Singh and Shri Bhupendra Singh Chauhan, Advs. JUDGEMENT Per: S K Gangele:- 1. The petitioner has filed this petition against the order dt.9.7.2010 passed by the Revisional Authority in Appeal F.No.375/8/DBK/10-RA-CUS F.No.375/9/DBK/10-RA-CUS, order dt.30.10.2009 passed by the Commissioner (Appeal-I) Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the Applicant are not relevant. 2.3 The Assistant Commissioner on perusal of Rule 13 of the Customs, Central Excise and Service Tax Drawback Rules, 1995, has held that, no separate Order-Appellate Order is required to be issued." 3. Against the aforesaid order, the petitioner filed two separate appeals. Those were dismissed. Thereafter, revision petitions were filed before the government, those were also dismissed and then the petitioner filed writ petition before the Delhi High Court. The writ petition was referred firstly to Three Judge Bench and thereafter before Five Judge Bench to decide the question that whether petition was maintainable or not. Thereafter, the petitioner had withdrawn the petition and filed the present petition before this court. 4. The respondents in the return pleaded that the petitioner is not eligible for drawback because the petitioner had procured inputs viz. MS drums and multi wall papers under the Rule 19 (2) of Central Excise Rules 2002 (hereinafter referred to as the 'Rules of 2002') without payment of excise duty and used the same product in the manufacture of goods exported by the petitioner. Since the petitioner did not ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is ineligible to receive the benefits in accordance with provisions of Rule 19 (2) of the Rules of 2002. It is further contended by the learned counsel that the petitioner had contravened the condition Nos. 7(f) of Notification No.68/2007-CUS (NT) and condition No. 8(f) of Notification No.103/2003-CUS (NT) of Central Excise Department. Hence, no drawback is admissible to the petitioner and the appellate and revisional authorities have rightly considered the case of the petitioner. In support of his contentions, learned counsel relied on the following judgment:- (i) Rubfila International Ltd. vs. Commissioner - 2008 (224) ELT A133 (SC). (ii) Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies - 2004 (166) ELT 23 (SC) (iii) Novopan Indian Ltd., Hyderabad - (1994) Supp. 3 SCC 606. (iv) M/s Sesame Foods Pvt. Ltd Vs. UOI reported in 2010 (253) ELT 167 (Del) (v) Union of India vs. Jain Shudh Vanaspati Ltd - 1996 (86) ELT 460 (SC) (vi) Venus Enterprises Vs. Commissioner of Customs, Chennai - 2006 (199) ELT 405 (Mad.) 8. The question for consideration before this court is that whether the petitioner is eligible for drawback which was granted earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort without payment of duty. The aforesaid rule is as under:- "Rule 19. Export without payment of duty.- (1) Any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner. (3) The export under sub-rule (1) or sub-rule (2) shall be subject to such conditions, safeguards and procedure as may be specified by notification by the Board." 13. It is an admitted fact that the petitioner had paid excise duty after receiving the show cause notice. 14. Condition No.(7) of Notification No.68/2007-CUSTOMS dt.16.7.2007 issued by the Govt. of India, Ministry of Finance, in exercise of powers conferred by subsection (2) and (3) of Section 75 of the Customs Act, 1962, sub section (2) and (2A) of Section 37 of the Central Excise Act, 1944 (1 of 1944), and Section 93A, and sub-section (2) and (3) of Section 94 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner deposited the CENVAT credit and excise duty on the aforesaid material. In such circumstances, in our opinion, the petitioner is eligible to receive benefits of drawback in terms of proviso to Rule 3 (1) of the Rules of 1995. 17. The argument of the revenue that since the petitioner paid the excise duty or CENVAT credit subsequently after issuance of show cause notice, hence, the petitioner is not eligible for the aforesaid benefit is not acceptable because there is no such condition mentioned in the proviso to Rule 3 (1) of the Rules of 1995 as quoted above. 18. Hon'ble Supreme Court in the case of Chandrapur Magnet Wires (P) Ltd. Vs. Collector of C. Excise, Nagpur, reported in 1996 (81) E.L.T.3 (S.C.) has held as under in regard to availability of reversal of Modvat credit permissible to avail exemption:- "We see no reason why the assessee cannot make a debit entry in the credit account before removal of the exempted final product. If this debit entry is permissible to be made, credit entry for the duties paid on the inputs utilised in the manufacture of the final exempted product will stand deleted in the accounts of the assessee. In such a situation it cannot be sai ..... 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