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TMI Blog2014 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Central Excise Tariff Act, 1985 and it has its factory located at Gandhinagar. 3.2 At the outset, it is required to be mentioned that the petitioner challenged the legality and validity of a circular being (1) Circular No. 937/27/2010-CX., dated November 26, 2010 of the Central Board of Excise and Customs (hereinafter referred to as 'the C.B.E. & C.') and (2) revisional order being Order Nos. 534 to 536 dated May 4, 2012 issued by the respondent No. 2 - Joint Secretary, Government of India, Ministry of Finance Department of Revenue, New Delhi [2012 (285) E.L.T. 155 (G.O.I.)]. However, subsequently the challenge to the circular has been given up and, therefore, the only challenge that remains is the alleged wrongful denial of rebate of duty paid on the export of cotton fabrics and cotton knitted garments on the ground that the petitioner was not liable to pay duty on cotton fabrics and cotton garments for they being absolutely exempt from payment of duty under Notification No. 29/2004 as amended by Notification No. 58/2008. Such duty had been paid which was eventually denied to be refunded. 3.3 The petitioner during the period under dispute i.e. February 1, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.4 The petitioner exported cotton fabrics and cotton garments on payment of duty of 4 per cent under claim for rebate under Rule 18 of the Rules. The petitioner claimed rebate as it availed credit of duty paid on inputs used in manufacturing of exported goods, the orders-in-original dated May 31, 2010 and October 25, 2010 rejected the total amount of rebate of Rs. 3,15,63,741/- paid by the petitioner for export of goods during the period from February 1, 2008 to July 6, 2009 on the ground that the petitioner was not required to pay the duty in view of both the notifications. 3.5 When challenged before the Commissioner of Central Excise (Appeals), the Commissioner in order-in-appeal rejected the appeals of the petitioner. 3.6 The petitioner preferred Revision against the order of Commissioner of Central Excise (Appeals) before the Respondent No. 2 - Joint Secretary, who dismissed the Revision Application against the order-in-appeal relying upon the Notification issued by the C.B.E. & C. dated November 26, 2010. Such order came to be passed on May 4, 2012. 3.7 In the meantime, the proceeding initiated against the petitioner for denial of credit is pending befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- in this Hon'ble Court with a liberty to the Petitioners to withdraw the same on such conditions as this Hon'ble Court may deem fit and proper; OR IN THE ALTERNATIVE to direct the respondents by an interim order to permit the Petitioner to take credit of Rs. 3,15,63,741/- in the Cenvat Account. (e) To grant ad interim relief in terms of Para-(d) hereinabove." 4. At the cost of reiteration, it needs to be mentioned that the petitioner has consciously given up the prayer clause 26(a) and, therefore, this petition is decided for considering the other reliefs other than prayed at paragraph 26(a). 5. On issuance of notice, an affidavit-in-reply has been filed by the Assistant Commissioner of Central Excise, where a stand is taken that in view of Section 5A(1A) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'), the whole of the duty of excise leviable in respect of excisable goods, an exemption has been granted absolutely and the manufacturer of such excisable goods is not required to pay excise duty on such goods. It is also further contended that since the final products were exempted from payment of excise duty, it is not open to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thus, from the whole of the duty of excise leviable on the exported goods, the exemption was available to the petitioner absolutely and the petitioner was not required to pay any amount of duty of excise on the goods exported by him. She further admitted that no benefits have been availed by the petitioner after having paid the excise duty on the exempted goods. She has fairly admitted that the Department is unable to sustain the defence of denying the rebate claims by all the three revenue authorities in view of the additional affidavit filed for and on behalf of the Department. 9. On, thus, having heard both the sides and on examination of the material on record, the question that involves in these petitions is the wrong availment of the benefit of concessional rate of duty vide Notification No. 59/2008, dated December 7, 2008. Admittedly, the final products were exempted from payment of duty by original Notification No. 29/2004-C.E., dated July 9, 2004 as further amended vide Notification No. 59/2008-C.E., dated December 7, 2008. The fact is not being disputed by the respondents that the petitioner availed Notification No. 59/2008 for clearance made to export and therea ..... 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