9911796707
TMI Blog2014 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials used in manufactured goods which are exported, rebate is granted subject to condition or limitation if any fulfilment of procedure specified in concerned Notification i.e. in Notification 19/2004-C.E. (N.T.), dated 6-9-2004. Whereas as per Rule 19 excisable goods/materials can be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises subject to conditions, safeguard and procedures as specified by Notification by the Board and for this very purpose Notification 42/2001-C.E. (N.T.), dated 26-6-2001 is applicable. The manufacturer/exporter is free to opt one of the Rules, which is more beneficial/suitable to him. Once anyone of the two options is exercised it attains finality and cannot be reverted back subsequently. It is very much clear that the respondents have made clearance of goods under UT-I Bond No. 28/2008, dated 3-4-2008 hence they have exercised the option to export goods under Rule 19 and in no way it was further open for him to pay duty and claim rebate thereupon. In such a situation payment of duty cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-original, the respondents filed appeals before Commissioner (Appeals), who allowed the appeal holding the rebate admissible subject to condition that the respondents fulfil all the other criteria. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The order-in-appeal No. 69/2011-C.E., dated 24-3-2011 passed by Commissioner (Appeals) is not proper and legal. The Commissioner (Appeals) has discussed eligibility of the rebate claim only on the issue as to whether the assessee is eligible for rebate claim in respect of the goods supplied to SEZ Units/Developers relying on Circular No. 29/2006-Cus., dated 27-12-2006 and also Circular No. 6/2010-Cus., dated 19-3-2010 issued from file F. No. DGEP/SEZ/13/2009. The Commissioner (Appeals) has erred in not considering the following issues involved in the case : (i) the supply of the goods without payment of duty after executing Letter of Undertaking (Form UT-1) during the month of March 2009 and paying duty subsequently on 31-3-2009 and filing rebate claim is improper as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has clearly indicated that the exports are under Duty Drawback Scheme and the amount of drawback eligible has also been endorsed on the concerned bills of export. Thus, furnishing of disclaimer certificate by the assessee at a later date i.e., on 25-8-2009 that the export of goods (6-3-2009 to 25-3-2009) is nothing but only an after-thought to mislead the department and claim the undue benefit i.e., rebate of duty as well as the duty drawback simultaneously on the same goods fraudulently. Order-in-appeal is totally silent on this aspect, which is a valid ground for rejection of claim and order-in-appeal having not discussed about the same deserves to be set aside. 5. A Show Cause Notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. They vide their letter dated 19-10-2011 given the following submission : 5.1 The Grounds of Appeal accepts that the goods were initially cleared under LUT in March 2009 and duty was paid on 31-3-2009. Therefore, the payment of duty on the goods cleared to SEZ Units is not in dispute. 5.2 The Grounds of Appeal refers to claim for Duty Drawback. The Department has completely ignored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is only the procedure under Rule 18 or Rule 19 of the Central Excise Rules, 2002 adopted to give effect to the statutory provisions of the SEZ Act, as envisaged under Rule 30 of the SEZ Rules, 2006. Therefore, the rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made to SEZ. 5.6 The Respondents submit that Rule 18 of the Central Excise Rules, 2002 is only procedural. The substantive conditions are (i) manufacture and payment of excise duty on the goods exported or supplied to SEZ Units, and (ii) proof of supply of goods to the SEZ Units. So long as these substantive conditions are fulfilled, the claim for rebate of duty paid on the goods cannot be denied. In the instant case there is no doubt or dispute with regard to these substantive conditions. 5.7 It is well settled position in law that the rebate and other export promotion schemes are incentive oriented beneficial legislation intended to boost exports and earn foreign exchange for the country. If the substantive fact of export of goods is not in doubt or dispute and the duty has been paid on the said goods and is accepted by the Department, the exporter is entitled to the rebate of the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee ought to have claimed the benefit of duty drawback and in the event of denial could seek conversion to some other scheme. In the instant case, though the assessee confirms that they have not claimed the benefit of duty drawback, yet they are not eligible for any other alternative export incentive. For the said reasons, the clearances effected by them remain under the provisions of Rule 19 of Central Excise Rules, 2002. He also contended that in the instant case the clearance of goods is not under Rule 18 of Central Excise Rules, 2002 but under Rule 19 of Central Excise Rules, 2002, hence the assesse has no right or liberty to choose the benefit of such export incentive which is beneficial without following the procedure prescribed in that regard. Shri M.S. Nagaraja, Advocate appeared on behalf of respondents who reiterated the memorandum of cross objection stated at para 5 above and submitted that order-in-appeal being legal and proper may be upheld. In his written submission he further relied upon several other case laws and requested that if rebate claim is not admissible then recredit of duty paid may be allowed in their Cenvat credit account. 7. Government has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Punjab Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P H) has decided as under :- 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 to 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 actual credit and for remaining portion, refund by way of credit is appropriate. Hon ble High Court of Punjab Haryana has observed that 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. 9. In view of above, Government directs the original authority to allow respondent to take recredit of said amount in their Cenvat credit account as the same cannot be retained by Government without an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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