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TMI Blog2013 (8) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... has been indicated in Central Excise Invoice issued by the manufacturer - Held that:- Rebate claim was rightly disallowed by lower authorities - Goods were being exempted no duty was required to be paid - the amount paid by assesse can be treated as payment of duty - Assesse deliberately choose not to export goods under bond - the rebate of duty under the provision of Rule 18 was eligible only if the duty of excise paid on excisable goods exported or the duty paid on the material used in manufacturing/processing of such goods - the amount paid by assesses was a voluntary deposit made by them on their own volition with the department and same was to be returned in the way it was initially paid - the amount paid by the assesses may be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /486/10-RA-CX 402/2009 (Ahd.-III) KCG/CE/ Commr (A) dated 11-12-2009 2. Brief facts of the case are that the applicant have exported Soft Drink Concentrate (finished goods) Food/Malic Acid (input) and have filed applications for rebate claims of duty paid on said goods exported under Rule 18 of the Central Excise Rules, 2002. Show Cause Notices were issued to the applicant proposing rejection of rebate claims on the grounds that the applicant have not followed the conditions and the procedure as specified in the Notification No. 40/2001-C.E. (N.T.) Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 as amended. Further they have declared and exported the goods in the relevant Shipping Bills under Chapter Heading No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the applicants can apply for re-credit of the same under the provision of Central Excise Act. Commissioner (Appeals) accordingly disposed off the appeal. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicants have filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The Commissioner (Appeals) has grossly erred in misconstruing that the payment made by the applicant under Rule 6(3)(b) of Cenvat Credit Rules, 2002 could not be considered as payment of excise duty and therefore, the applicant was not eligible to refund of the said amount. In fact, as is apparent from the said provision, the same has been made only with a view to avoid any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing was scheduled in both the case on 19-1-2012. Shri Uday Joshi, Advocate and Shri Mukesh Mutreja, Consultant appeared in both the cases on behalf of the applicant and reiterated the grounds of Revision Application. 6. Government has carefully gone through the relevant case records and perused the impugned Orders-in-Original and Orders-in-Appeal. 7. It is observed that the Revision Application is filed by the applicants with a delay of 30 days and sufficient cause is shown by them for such delay. The delay being within condonable limit, is condoned and Revision Applications are taken up for decision on merit of case. Since issued involved in both the cases are same, they are taken up together for disposal by this common order. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002, para (c) of the ground of rejection, he found that the amount @ 10% was paid erroneously under the provision of said Rules is not a payment of Central Excise duty hence applicant is not eligible for rebate. He however allowed that the applicant may apply for re-credit of the same under the provisions of Central Excise Act, 1944. Now the applicants have filed these revision application on grounds mentioned in para 4 above. 9. Government notes that erstwhile Rule 6(3)(b) of the Cenvat Credit Rules prevailing at material time stipulates for payment of an amount equal to ten per cent of value of the exempted final goods, if manufacturer of such goods opted not to maintain separate accounts for dutiable and exempted goods. This provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be returned 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. The ratio of judgment passed by Hon ble Punjab and Haryana High Court in CWP Nos. 2235 and 3358 of 2007 in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI [2009 (235) E.L.T. 22 (P H)] is squarely applicable to this case. Hon ble High Court has held that :- Rebate/Refund - Mode of Payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled for refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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