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TMI Blog2014 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... o sanction claim of obviously excess paid duty and then initiate proceeding for recovery of the erroneously paid rebate claim. Therefore, the circular of 2000 as relied upon by applicant cannot supersede the provisions of Notification No. 19/2004-C.E.(N.T.). Adjudicating authority has rightly held in his findings that rebate of duty paid @ 8% in terms Not. No. 04/2009-C.E., dated 24-2-2009 is rebatable under Rule 18 but erred in sanctioning the total amount. Government holds that rebate is admissible of duty paid at effective rate of duty on 24-2-2009 i.e. @ 8% in terms of Not. No. 4/2009-C.E., dated 24-2-2009 and part rebate claim of ₹ 60,061/- erroneously sanctioned is recoverable along with applicable interest. Government directs the respondent party to repay in cash the erroneously sanctioned amount of ₹ 60,061/- along with applicable interest to the department and thereafter department may allow the re-credit of said amount in their cenvat credit account in the light of above said judgment of Hon’ble High Court of Punjab & Haryana [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT]. Government sets aside the impugned order-in-appeal and modifies the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be sanctioned as rebate as mentioned in C.B.E. C. Circular No. 510/06/2000-CX, dated 3-2-2000. The effective rate of duty in the instant case was reduced vide Notification No. 4/2009-C.E., dated 24-2-2009 to 8%. But at the time of clearance of goods on 24-2-2009 it was not known either to the assessee or to the jurisdictional Range Officer regarding the change of rate of duty. The assessee paid the duty at the earlier rate of 10% . The Commissioner (Appeals) has not appreciated the fact that the Board s Circular No. 510/06/2000-CX, dated 3-2-2000 clarifies that rebate has to be allowed equivalent to the correct duty. Thus what is important in the case is correct amount of duty as applicable at the prevailing time. The duty paid by the assessee bring not the correct duty as per the rate prevailing at the time, the amount paid in excess of 10% adv. cannot be considered as duty for grant of rebate. 4.2 Commissioner (Appeals) order is per incuriam as it does not consider the provisions of Section 5A(1A) of the Central Excise Act which stipulates that in case of unconditional exemption, no excise duty is payable. 4.3 The ignorance of law is not an excuse to pay the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment, it has been held that the assessee cannot file any appeal against their own assessment. 4.7 The provisions of para 3(b) of the Notification No. 19/2004 (N.T.), dated 6-9-2004, issued under Rule 18 of the Central Excise Rules, 2002, clearly spelled out that if the proper officer (i.e. AC/DC of Central Excise having jurisdiction over the factory or Maritime Commissioner) is satisfied himself that the claim is in order then he shall sanction the rebate either in whole or part. This means that he is empowered to look into the correctness of the rebate claim. 4.8 Further paragraph 8.4 of chapter 8 of C.B.E. C. Central Excise Manual reads as follows - 8.4 After satisfying himself that the goods cleared for export under the relevant ARE-1 applications mentioned in the claim were actually exported, as evident from the original duplicate copy of ARE-1 duly certified by Customs, and that the goods are of duty-paid character as certified on the triplicate copy of ARE-1 received from the jurisdictional Superintendent of Central Excise (Range office), the rebate sanctioning authority will sanction the rebate, in part or full. In case of any reduction or rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has to satisfy himself that rebate claim is in order before sanctioning the same. The said provision is contained in para 3(b)(ii) of Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004 which is extracted below :- 3(b) Presentation of claim for rebate to Central Excise :- (i) .. (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. The said provisions of this notification clearly stipulate that after examining the rebate claim, the rebate sanctioning authority will sanction the claim in whole or part as the case may be depending on facts of the case. 9.2 Government notes that said notification issued under Rule 18 of Central Excise Rules, 2002, prescribes the conditions, limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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