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TMI Blog2013 (7) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... ining portion, refund by way of credit is appropriate.” - refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat Credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially - Applicants may be allowed to take re-credit of said amount in their Cenvat credit account. Decided against the Assessee. - F. No. 195/679/2010-RA - 543/2012-CX - Dated:- 8-5-2012 - Shri D.P. Singh, J. REPRESENTED BY : Shri C.T. Krishnamurty, Advocate, for the Assessee. [Order]. This revision application is filed by the applicant M/s. Duke Consumer Care Ltd., Hyderabad against the order-in-appeal No. 53/2010 (H-IV) C.E., dated 30-4-2010 passed by the Commissioner of Customs, Central Excise Service Tax (Appeals-II), Hyderabad with respect to order-in-original No. 252/2009 (Rebate), dated 31-12-2009 passed by Assistant Commissioner, Central Excise, Hyderabad-L Division. 2. Brief facts of the case are that the applicants have filed rebate claim under Section 11B of Central Excise Act, 1944 for an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, has discharged the duty and claiming the rebate of the same, which appears to be not correct. 4.2 The assessees have submitted in their reply to show cause notice is that the goods have been imported under Advance Authorization, for which Notification No. 43/2001-C.E. (N.T.) is not applicable and the relevant Notification No. 40/2006-Cus., dated 1-5-2006 as amended. The contention of the assesses and case laws quoted by them are not applicable in this case, as assesses have submitted provisions of DFIA Scheme instead of Advance Authorisation. Therefore, the goods exported were manufactured by procuring entire inputs without payment of excise duty under provisions of Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 as amended and goods are to be exported under bond or letter of undertaking in terms of sub-rule (1) of Rule 19 of the Central Excise Rules, 2002. Thus the assessee has contravened the provision of sub- rule (1) of Rule 19 of the Central Excise Rules, 2002 has discharged the duty and claimed the rebate of the same, which is not correct. Further, one of the ARE-1 No. 07 dated 6-1-2009 has been endorsed by the Customs Authorities for the ineligibility of any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of the finished goods. The rebate pertains to their finished goods only. 4.5 On a similar issue, in case of another assessee, when rebate was granted, the department filed an appeal before the Commissioner (Appeals), contending that in terms of Notification No. 93/2004-Cus., dated 10-9-2004 the manufacturer taking the benefit of this Notification has to export the goods only under bond and hence the rebate granted under Rule 18 was erroneous. The Commissioner (Appeals) vide Order-in-Appeal No. 62/2008 (H-IV)(D), dated 23-9-2008 held as under : From the above, it is pellucid that the facility of advance licence under the said Notification can be availed of by the importer subject to the condition that no rebate of duty is availed on the materials used in the manufacture of the resultant product. By the said corrigendum, it was clarified that the restriction of rebate is limited to the inputs and not to the resultant final products, whereas the department has made a skewed interpretation that the corrigendum intended to deny the importers benefit of rebate on resultant finished products as well as the duty paid raw materials. 4.6 Further quite a few Circulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed by the Range Officer and the same was mentioned in the finding part of the order-in-original and the assessee have never contended that the said report of Range Officer is wrong. The assessee too did not produce any evidence either before the adjudicating authority or before the appellate authority [Commissioner (Appeals)] to show that only input imported under Notification No. 93/2004-Cus., dated 10-9-2004 were used in the manufacture of goods exported. They neither produced any documentary records to prove that no inputs procured by them indigenously without payment of duty for such export. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government observes that the rebate sanctioning authority has disallowed the rebate claim on the ground that the goods exported by the applicants were manufactured by procuring input without payment of excise duty under provision of Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 as amended which were required to be exported under Bond or Letter of Undertaking in terms of sub-rule (1) of Rule 19 of the Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under :- Rebate - Exempted goods cleared for export on payment of duty - Union of India not, in any event, entitled to retain the amount in question - If no duty was leviable and the assessee was not required to pay the duty still if he has paid the duty which has been received by the Commissioner, they cannot retain the same on any ground and must refund the amount received from assessee as on their own showing -Assessee entitled to remove goods on payment of duty in ordinary course and he is entitled to claim rebate thereon because the goods were exported out of country on payment of excise duty - Rule 18 of Central Excise Rules, 2002 . Therefore, Government is required to return the said amount to the applicants in the manner in which it was paid, as the said amount cannot be retained by Government without any authority of law. Hon ble High Court of Punjab and Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 and 3358 of 2007, in the case of M/s. Nahar Industries Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P H) has held as under :- Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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