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TMI Blog2013 (7) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited by it by actual credit and for remaining portion, refund by way of credit is appropriate - Excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially – Ordered to be re-credited in their Cenvat Credit Account - Rebate claims are rightly held inadmissible under Rule 18 of Central Excise Rules, 2002 read with Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004. Decided against the Assessee. - F. No. 195/495/2011-RA - 537/2012-CX - Dated:- 4-5-2012 - Shri D.P. Singh, J. REPRESENTED BY : S/Shri N. Venkataraman and S. Durairaj, Advocates, for the Assessee. Shri V.S. Vengadashwaran, ACCE, for the Department. [Order]. This revision application is filed by M/s. GTN Engineering (India) Ltd., Coimbatore against the Order-in-Appeal No. 87/2011, dated 29-4-2011 passed by Commissioner of Central Excise (Appeals), Coimbatore with respect to Order-in-Original No. 215/2010, dated 13-8-2010 passed by Deputy Commissioner of Central Excise, Coimbatore-II Division Coimbatore. 2. Brief facts of the case are that the applicant, an 100% EOU, are the holders of Licence No. 04/2004 for Private Bonded Warehouse under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the following grounds. 4.1 The exemption under Notification No. 24/2003-C.E., dated 31-3-2003 is not an absolute exemption. The said exemption is applicable only for exports and not for domestic clearances. Central Excise Law permits export of goods either under Rule 18 or under Rule 19 of the Central Excise Rules, 2002. Rule 18 permits the exports on payment of duty for claiming rebate. Rule 19 permits the exports under bond or letter of undertaking. Therefore, the applicants had cleared the goods as per Rule 18 of the Central Excise Rules, 2002 by paying the appropriate duty of excise. It is an option to avail either Rule 18 or Rule 19. It is not mandatory on the applicants to avail Rule 19 alone for exports. In the instant case, the applicant had availed Rule 18 of the Central Excise Rules, 2002. 4.2 It is respectfully submitted that recently an amendment has been made to Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 vide Notification No. 24/2010-C.E. (N.T.), dated 26-5-2010 which prescribes the provisions of export of goods under bond without payment of duty. As per the amendment export of excisable goods, which are chargeable to nil rate of duty or are who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. However, this plea has been turned down by the Commissioner (Appeals) on the ground that the same was raised for the first time before him by citing the decision rendered in the case of Agarwal Steel Industries v. CCE reported in 2000 (118) E.L.T. 616 (Tri.). In this connection, it is respectfully submitted that the applicants had raised this point before the adjudicating authority in their written submission dated 12-5-2010 (paragraph 2 of the order-in-original); further, it is a legal plea and can be raised at any stage as per the decisions rendered in the case of CCE v. Santom Enterprises - 2010 (261) E.L.T. 1133 (Tri.-Bang.) and Trichy Steel Rolling Mills Ltd. v. CC, Chennai [2009 (238) E.L.T. 686 (T)] and the decision referred by the Commissioner (Appeals) related to question of fact and not question of law. 5. Personal hearing scheduled in this case on 19-4-2012 was attended by Shri N. Venkataraman S. Durairaj, Advocates on behalf of the applicant who reiterated the grounds of revision application. Shri V.S. Vengadashwaran, ACCE Coimbatore-II Division Coimbatore attended hearing on behalf of respondent-department who stated that order-in-appeal may be upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been granted absolutely the manufacturer of such excisable goods shall not pay the duty of excise on such goods. 8.3 Government notes that the Notification No. 24/2003-C.E., dated 31-3-2003 was issued under Section 5A(i) of Central Excise Act, 1944, exempts goods manufactured by 100% EOU and cleared for export from whole of duty unconditionally. Therefore in view of provisions of sub-section (1A) of Section 5A(1), the applicant manufacturer cannot pay duty. Applicant has contended that the said notification is conditional as the duty is payable on DTA clearances. Government notes that there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear all the goods manufactured by them for exports as per the EOU scheme. Such units can clear the goods in DTA with prior permission of Development Commissioner. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A(1) are applicable and no duty was required to be paid on such exported goods. As such rebate claim is not admissible in terms of Rule 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to bear in mind certain principles. The notification in this case was issued under Rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself ........... 10. Applicant has relied upon the decision of Hon ble High Court of Rajasthan in the case of CCE v. Suncity Alloys Pvt. Ltd. [2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.)]. In the said case Hon ble High Court has held that if no duty is leviable and still assessee paid duty, the Department cannot retain it on any ground and must refund it. Government observes that the duty paid without the authority of law cannot be treated as duty paid under the provision of Central Excise Act. As such said paid amount has to be treated as a voluntary deposit made by applicant with the Government. Government cannot retain any amount without any authority of law. So, any excess paid amount has to be returned in ..... 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