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TMI Blog2013 (7) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... 796/- PKS/535/Be1/2 011 dated 3-3-2011 passed by Commissioner of Central Excise (Appeals) Mumbai-III 412/R/R KD/AC (RC)/M- III/10-11 dated 16-9-10 2. 198/624/11- RA Commissioner of Central Excise, Mumbai-III M/s. Aarti Industries Ltd., Mumbai 1,71,138/- PKS/55/Bel/2011 dated 15-6-2011 passed by Commissioner of Central Excise (Appeals) Mumbai-III 76/R/RKD/AC (RC)/M-III/10-11 dated 27-12-2010 3-7. 198/627- 631/11-RA Commissioner of Central Excise, Mumbai-III M/s. Aarti Industries Ltd., Mumbai 44,01,637/ PKS/49- 53/Bel/2011 dated 14-6-2011 passed by Commissioner of Central Excise (Appeals) Mumbai-III 389- 393/R/R KD/AC (RC)/M- III/10-11 dated 31-12-2010 8-10. 198/637- 639/11-RA Commissioner of Central Excise, Mumbai-III M/s. Aarti Industries Ltd., Mumbai 7,02,486/- PKS/86- 88/Bel/2011 dated 5-8-2011 passed by Commissioner of Central Excise (Appeals) Mumbai-III 410, 434, 441/R/R KD/AC (RC)/M-III/10-11 dated 23-2-2011 11- 14. 198/308- 311/11-RA Commissioner of Central M/s. Cipla Ltd., 9,45,494/- PKS/518- 521/Bel/10 dated 407,338, 337,335/ Excise, Mumbai-III Mumbai 17-2-2011 passed by Commissioner of Central Excise (Appeals) R/RKD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as paid for the inputs used in the manufacture of such exported goods which were cleared on payment of duty of Central excise may be from Cenvat Credit Account. Accordingly, the Commissioner of Central Excise (Appeals) allowed the appeals mentioned at S.No. 3-7 and 11-14 of the table above but rejected department's appeals mentioned at S.No. 1, 2, 8-10, 15-18 and 19 of the table above. 3. On being aggrieved by the impugned orders-in-appeal mentioned in the table above, the applicant Commissioner has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the below mentioned common/identical grounds :- 3.1 The claimant has submitted declaration along with rebate claims that "no separate claim for the rebate of duty has been or will be made to Central Excise Authorities under Rule 18 of the Central Excise (No. 2) Rules, 2001 and no claim for drawback of duty has been made or will be made under the Customs and Central Excise Duties Drawback Rules, 1995, with the Customs Authorities and that the Customs and the Central Excise Duties wherever leviable has been paid on the raw material used in the manufacture of goods". H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 103/2008-Cus. (N.T.), dated 29-8-2008 as amended from time to time contains provision regarding duty drawback scheme. The sub-conditions (e) of the condition No. 8 of notification is in relation to rebate claim, which is as follows :- "(e) manufactured or exported by availing the rebate of duty paid on materials used in the manufacture or processing of such commodity or product in terms of rule 18 of the Central Excise Rules, 2002;" There is no prohibition on taking rebate of the duty paid on the finished goods under Drawback Scheme, the prohibition is only with respect to rebate claim of duty paid on inputs. 4.5 The allegation of the department that Drawback is not admissible if Cenvat credit is availed is totally erroneous. It has been alleged in the grounds of Appeal by the department that as per the guidelines given vide Duty Drawback procedure, Drawback is not admissible if Cenvat credit is availed. Therefore, the respondent has to certify that they have not availed Cenvat credit under Rules of Central Excise Act, 1944 which is mentioned in the drawback rules. Hence, the respondent has simultaneously claimed two benefits which are not admissible to them. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise in charge of factory of production, to the effect that no Cenvat facility has been availed for the goods under export is produced." In the instant case no such certificate has been produced. As per Circular No. 42/2011-Cus., dated 22-9-2011 "doubts have been raised as to the eligibility of exporters to claim the composite rate of duty drawback in situations covered under para 15(ii) of Notification No. 84/2010-Cus. (N.T.) in the light of the expression "when no Cenvat facility has been availed for the goods under export" being mentioned in the said para. The doubt has apparently arisen because para 15(i) ibid mentions the words 'that no Cenvat facility has been availed for any of the inputs or input services used in the manufacture of the export product". It is hereby clarified that drawback is reimbursement of input duties suffered in the manufacture of export goods and as long as no Cenvat credit has been availed for any of the inputs or input services used in the manufacture of the export product, the composite rate of drawback is permissible on export of such goods. The expression "when Cenvat facility has not been availed", in para 15 of the above mentioned notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akings required for the purpose. 8. The applicant department as well as the respondent exporters although not dispute the applicable statutory provision but are citing and interpreting the limited portions/paras of the same so as to draw their respective favourable conclusions. The respondents have contended that they have claimed and got drawback under All Industry Rate only of Customs portion and no drawback in respect of Central Excise duty allocation under the All Industry Rate of drawback has been claimed. They have relied upon GOI order in the case of M/s. Benny Impex Pvt. Ltd. - 2003 (154) E.L.T. 300 and also in the case of William Industries - GOI Order No. 38/2009-CX., dated 30-1-2009 (F.No. 195/300/2006 in this case revision application was filed against the order-in-appeal No. BR(30-80) 50/MI/06, dated 13-3-2006 passed by Commissioner of Central Excise (Appeals), Mumbai-I). 9. Government observes that the instant rebate claims are governed by Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004 wherein conditions and procedure has been prescribed for claiming rebate of duty in terms of Rule 18 of Central Excise Rules, 2002. The said notification nowhere puts any rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow the column "Drawback when Cenvat facility has not been availed" refer to the total drawback (customs, central excise and service tax component put together) allowable and those appearing under the column "Drawback when Cenvat facility has been availed" refer to the drawback allowable under the customs component. The difference between the two columns refers to the central excise and service tax component of drawback. If the rate indicated is the same in both the columns, it shall mean that the same pertains to only customs component and is available irrespective of whether the exporter has availed of Cenvat or not." It is clear from the said condition that drawback of duty can be availed when Cenvat facility has been availed but the rates applicable is lower rate. Further C.B.E. & C. has clarified in C.B.E. & C. Circular No. 23/2001-Cus., dated 18-4-2001 (F.No. 605/12/2001-Drawback) as under :- "2. The issue has been examined in the Board. All Industry Rate is based on the concept of averages, wherein the drawback rate itself as well as its customs and excise portions are based on weighted averages of consumption of imported/indigenous inputs of a representative cross s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of export goods has been taken in terms of Rule 18 of Central Excise Rules, 2002, or if such raw materials were procured without payment of Central Excise duty under Rule 19(2) of the Central Excise Rules, 2002." The content of the above said circular envisage that the Customs component of AIR drawback shall be available even if the rebate of Central Excise duty paid on raw materials used in manufacture of exported goods has been taken in terms of Rule 18 of Central Excise Rules, 2002. This position is made amply clear in the Notification No. 84/2010-Cus. (N.T.), dated 17-9-2010. 13. Government observes that Commissioner (Appeals) has given his detailed findings in Order-in-Appeal Nos. 49-53/2011, dated 14-6-2011 in the case of M/s. Aarti Industries. Department in their revision applications has not countered even a single argument and simply stated that double benefit of drawback and rebate of duty cannot be allowed. Government is in agreement with the findings of Commissioner (Appeals). As such the argument of department that allowing said rebate of duty when drawback of Customs portion is availed will amount to double benefit, does not hold good and is not sus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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