9911796707
TMI Blog2014 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No 42/2001-Central Excise, dated 26-6-2001 and not under notification 19/2004-Central Excise, dated 6-9-2004 under claim of rebate. The respondents subsequently paid the duty by making consolidated debit entry in the Cenvat credit account on 31-3-2009 to discharge duty liability in respect of said goods cleared without payment of duty under bond and claimed rebate. It was also noticed that clearances under the above said ARE-1s have been "made under drawback scheme as found out by the endorsements on the reverse side of the relevant Bills of Export thus contravening the conditions in Notification No. 19/2004-C.E., dated 6-9-2004 issued under Rule 18 of Central Excise Rules, 2002, hence refund claim was rejected by the original authority under the provisions of Rule 18 of Central Excise Rules, 2002 read with Section 11B of Central Excise Act, 1944. 3. Being aggrieved by impugned 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities." 4.2 From a plain reading of above rule, it is clear that drawback and the rebate of duty cannot be claimed on the same goods simultaneously. In the instant case, it is evident from the bills of export and the endorsements on their back side indicating the amount of eligible drawback, that the assessee has claimed both drawback and rebate simultaneously on the same goods, which is not permissible as per Rule 12 of Customs, Central Excise Duties and Service Tax Drawback Rules, 1955 (as it stood at the relevant point of time). 4.3 Further, it is also seen that the assessee vice their letter dated 25-8-2009 have furnished a disclaimer certificate stating that they are not claiming any Duty Drawback on the duty suffered by the export goods for which they are claiming the rebate. However, it is seen from the concerned ARE-Is and other related export documents that the assessee 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 ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed duty drawback on the said goods exported and which is the subject matter of the present proceedings. 5.4 The respondents submit that the appellants ought to have appreciated that Rule 18 and Rule 19 of the Central Excise Rules, 2002 are complementary to each other and cover the same subject of payment of duty on the goods exported. While Rule 18 of the Central Excise Rules, 2002 provides for clearance of goods for export on payment of duty and claim of rebate of the duty paid on the goods exported, Rule 19 permits the manufacturer to export the goods without payment of duty. If the assessee has paid the duty on the goods exported, the question of option under Rule 19 does not arise and the only option is to claim rebate of the duty paid under Rule 18 of the Central Excise Rules, 2002. 5.5 The C.B.E. & C. Circular No. 6/2010, dated 19-3-2010 clarifies that the clearance of duty free materials for authorized operation in the SEZ is admissible under Section 26 of the SEZ Act, 2005 and it 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj). * HPCL v. CCE - 1995 (77) E.L.T. 256 (S.C.) 6. Personal hearing was scheduled in the case on 14-12-2012. Dr. M. Pariyasamy, Deputy Commissioner of Central Excise, E-l Division appeared on behalf of the applicant department who reiterated the grounds of revision application. In their further submission Department is relying on various circulars contended that where the exporter had filed shipping bill under a particular export promotion scheme but benefit of that scheme was denied to him by DGFT or Customs, then conversion of shipping bill may be allowed/permitted on merits by the Commissioner on case to case basis subject to certain conditions. The assessee has not obtained necessary permission from the competent authority in this regard and clearances effected under the drawback scheme remains unchanged and also cannot be changed for whatsoever reason. Further, conversion from one export promotion scheme to another is concerned, such conversion has to be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by DGFT/ MOC or Customs due to any dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Government observes that these two provisions are two different sets of Rule which provide export benefits to the manufacturers/exporters and applies on different circumstances as stated above. 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 Government. Government observes that H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
