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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 ..... ification No. 84/2010 – decided against revenue. - F. Nos. 198/385, 624, 627-631, 637-639, 308-311, 633-636, 668/2011-RA - 551-569/2012-CX - Dated:- 11-5-2012 - Shri D.P. Singh, J. REPRESENTED BY : Shri, P.K. Aggarwal, CCE, for the Department. S/Shri Mehul Jivani, C.A., Sudhakar Shetty, GM, R.K. Sharma, Sr. Counsel and Anand Sharma, Manager (Taxes), for the Assessee. [Order]. These revision applications have been filed by the applicant Commissioner of Central Excise, Mumbai-III as per column No. 2 against respective orders-in-appeal mentioned in column No. 6, as passed by Commissioner of Central Excise (Appeals) Mumbai-III for the respondents as mentioned in Column No. 4, with respect to individual orders-in-original given in Column No. 7 of the table below :- Sl. No. Revision Application F.No. Name of Applicant Name of the Respondent Rebate claim Order-in- Appeal No. date Order-in- Original No. date (1) (2) (3) (4) (5) (6) (7) 1. 198/385/ 11-RA Commissioner of Central Excise, to Mumbai-III M/s. Aarti Industries Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise after due verification of the rebate claims sanctioned the rebate claims in respect of cases mentioned at S.Nos. 1, 2, 8-10, 15-18 and 19 of the table above but the rebate claims mentioned at S.Nos. 3-7 and 11-14 of the table above were rejected basically on the ground that the exporters herein are not entitled to rebate of duty paid on the goods cleared after availing Cenvat credit facility because they have also claimed/availed drawback, even of the customs portion only because such claims would amount to availing undue double benefits in terms of the applicable statutory provisions of respective Rules/Regulations as detailed therein. None of the above orders-in-original could attain finality in as much as the department after due process of review filed appeals before Commissioner of Central Excise (Appeals) in respect of cases where rebates were granted initially as per the table above whereas the respective exporters filed their appeals before Commissioner (Appeals) in cases where these rebate claims were initially rejected as per the table above. The Commissioner of Central Excise (Appeals) however after due consideration of the facts and submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawback Rules, 1995, with the Customs Authorities and that the Customs and Central Excise Duties wherever leviable has been paid on the raw material used in the manufacture of goods . 4. Respective show cause notices were issued to respondent exporters under section 35EE of Central Excise Act, 1944, in response to which the below mentioned similar replies have been received :- 4.1 There is no prohibition on claiming duty drawback under Notification No. 19/2004, dated 6-9-2004 and Notification No. 21/2004-C.E.(N.T.), dated 6-9-2004 and respondent has satisfied all the conditions relating to the said notifications and therefore eligible for rebate of the duty paid on finished goods. 4.2 The issue of simultaneous claim of drawback of Customs component and Rebate of excise duty on finished goods exported was also decided by Revisionary Authority in the case of M/s. William Industries Order No. 39/2009 of the GOI, dated 30-1-2009 and Benny Impex Pvt. Ltd. reported in 2003 (154) E.L.T. 300 (GOI). 4.3 The Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008 as amended from time to time contains provision regarding duty drawback scheme. The point 6 to notes and conditions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details of the duty drawback has also been mentioned therefore rebate sanctioning authority cannot deny the rebate solely on the basis of the said declaration. The specimen copies of the ARE-I covered by Order-in-Original No. 389/R/RKD/AC(RC)/M-III/10-11, dated 31-12-2010 are attached. Without prejudice to the above, filing of declaration is procedural in nature and therefore same is condonable. 4.7 That the allegation made in order-in-original is two benefits such as rebate and drawback cannot be availed simultaneously by the claimant . Also as per para 15 of Customs Notification No. 84/2010-Cus. (N.T.), dated 17-9-2010 issued under F.No. 609/76/2010-DBK, as regards the expressions when Cenvat facility has not been availed used in the schedule to Notification No. 84/2010-Cus. (N.T.), the exporter shall satisfy the following conditions, namely, (i) The exporter shall declare, and if necessary, establish to the satisfaction of the Assistant Commissioner of Customs or Assistant Commissioner of Central Excise or Deputy Commissioner of Customs or Deputy Commissioner of Central Excise, as the case may be, that no Cenvat facility has been availed for any of the inputs or inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai by Shri Anand Sharma, Manager (Taxes). All the representatives from respondent said pleaded/reiterated facts/merits of their case/replies and requested for upholding the views of Commissioner (Appeals) herein. 6. Government has carefully gone through the records of all the above case matters including written/oral submissions made and the applicable statutory provisions of law involved therein. Since all the above cases involve a single point of dispute regarding admissibility of rebate of duty paid on final product exported when drawback of custom portion is availed and also Cenvat Credits of Central Excise duty paid on inputs have also been availed, Government therefore thinks it proper to deliberate upon and decide all the above cases, by this common order. 7. Government notes that basic facts and figures including facts of proper exports of duty paid goods as per the respective ARE-1s and other export documents are not in dispute. Commissioner (Appeals) has held the rebate of duty paid on finished exported goods is admissible even if the drawback of Custom portion is availed and Cenvat facility is also availed. The applicant department in their revision applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned restrictions are not applicable here. 10. Government also notes that C.B.E. C. vide Circular No. 83/2000-Cus., dated 16th October, 2000 has clarified that where only Customs portion of duties is claimed as per the All Industry Rate of Drawback (erstwhile) Rule 57F (14), does not come in the way of admitting refund of unutilized credit of Central Excise/Countervailing duty paid on inputs used in the products exported. This clarification also indicates that there is no restriction on granting rebate of duty paid on exported goods even if the drawback of Customs portion is availed by exporter. This view is already taken by Government in GOI order cited by respondent i.e. 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. 11. Further, Government keeping in view that as per the policy of making the Drawback scheme more attractive and beneficial to the exporters has bifurcated the composite rates of drawback into Central Excise portion and that of Customs portion and that too in two types of different situations i.e. when Cenvat Credit facility has been availed and when no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross section of exporters is taken into account. 12. It may be noted that the C.B.E. C. vide Circular No. 35/2010 dated 17-9-2010 has clarified this position. The relevant paragraph reads as under :- (vi)(d) The earlier Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008 as amended provided that the rates of drawback in the Drawback Schedule would not be applicable to products manufactured or exported by availing the rebate of Central Excise duty paid on materials used in the manufacture of export goods in terms of Rule 18 of the 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. References have been received that exporters are being denied 1% of drawback, which is the customs component of the AIR drawback, on the basis of the above condition although the manufacturers had taken only the rebate of Central Excise duties in respect of their inputs/procured the inputs without payment of central excise duties; and the Customs duties which remained unrebated should be provided through the AIR drawback route. The issue has been examined. The present Notification No. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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