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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 ..... Petitioner. Dr. Ms. Amee Yajnik, Advocate, for the Respondent. ORDER Rule. The formal service of notice of Rule is waived by Shri P.S. Champaneri, learned Assistant Solicitor General of India, on behalf of respondent Nos. 1 and 2 as well as Dr. Amee Yajnik, learned Central Government Standing Counsel, on behalf of Respondent No. 3, in both the petitions. 2. These writ petitions preferred under Article 226 of the Constitution of India arise in identical set of facts and the legal questions involved in both the petitions are identical and, therefore, they are being disposed of by this common judgment. 3. The brief facts of Special Civil Application No. 10887 of 2012 are reproduced for the purpose of adjudication of these matters. 3.1 The petitioner is a company engaged in manufacturing of textile products of the first schedule 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry same day by a subsequent Notification No. 59/2008, the Respondent No. 1 exempted the cotton Textile Products from payment of textile duty in excess of 4 per cent ad valorem. Furthermore, vide Notification No. 11/2009-C.E., dated July 7, 2009, Notification No. 29/2004 was amended, whereby the cotton textile products were exempted from excise duty leviable thereon in excess of 4 percent ad valorem. In other words, for the period during December 7, 2008 to July 6, 2009, two notifications were in operation exempting cotton textile products, viz. (1) Notification No. 29/2004 as amended vide Notification No. 58/2008, dated December 7, 2008, which exempted cotton textile products from whole of the duty on excise and (2) Notification No. 59/2008, dated December 7, 2008, which exempted cotton textile products in excess of 4 per cent ad valorem. 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the said letter/application dated 31st July, 2012 of the Petitioner. (c) To issue a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondents by themselves, their subordinate servants and agents to forthwith (i) withdraw and cancel Order No. 534-536/2012/CEX dated 4 May 2012, passed in Revision Application by Respondent No. 2; and (ii) Circular No. 937/27/2010-CX, dated 26-11-2010, of the Central Board of Excise and Customs (iii) grant the Petitioners rebate of Rs. 3,15,63,741/- with interest thereon under Section 11BB of the Act; (d) Pending the hearing and final disposal of the writ petition, the Respondents be directed by an interim order and injunction of this Hon ble Court to forthwith deposit Rs. 3,15,63,741/- 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner who has fervently submitted that on availability of benefits of both the notifications, the petitioner was not liable to pay any duty. However, mistakenly when the petitioner has paid such duty, the respondents ought not to have denied its claim for rebate. He also further urged that no other benefits have been availed by paying such excise duty. He urged that the stand taken by the Department is contrary to law. Once not having availed any other benefits when the rebate has been claimed, it ought to have granted. 8. Per contra, the learned Central Government Standing Counsel Dr. Amee Yajnik appearing for Respondent No. 3, has submitted on the line of affidavit-in-reply that the petitioner was not liable to pay any amount of duty in view of exemption in respect of the excisable goods and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the duty and the petitioner if had paid duty at the time of exporting the goods, there is no reason why it should be denied the rebate claimed which otherwise the petitioner is found entitled to. We are not going into the larger issues initially argued before us as subsequently the Revenue has substantially admitted the claim of rebate of excise duty and has not resisted in substance such claim of rebate. 11. Resultantly, both the petitions are allowed quashing and setting aside the orders impugned in both the petitions by further directing the respondents to grant the petitioner of Special Civil Application No. 10887 of 2012 rebate of Rs. 3,15,63,741/- (Rupees Three Crore Fifteen Lac Sixty Three Thousand Seven Hundred Forty One only) and Rs. 39,59,750/- (Rupees Thirty Nine Lac Fifty Nine Thousand Seven Hundred Fifty only) to the petitioner of Special Civil Application No. 10891 of 2012, by calculating interest thereon under Section 11BB of the Central Excise Act, 1944, within a period of eight weeks from the date of receipt of a copy of this judgment. 12. Rule is made absolute in each petition to the aforesaid extent. There shall be, however, no order as to costs. - ..... 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