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TMI Blog1985 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, as seen from the review show cause notice F. No. 158/6/77-81-CX-II, dated 11-9-1981 (to which we shall advert later) are that- "The assessee filed three refund claims amounting to ₹ 11,900.71 (Rs. 3,896.62, ₹ 2,022.91 and ₹ 5,981.18) to the Asstt. Collector of Central Excise, Calcutta-II Division, Calcutta for refund of duty paid by them on diesel oil/furnace oil supplied in bunker to foreign going vessels on the grounds that the Govt. of India vide Notification No. 349/77, dated 16-12-77 did not envisage any payment of duty on such supplies. The Asstt. Collector of the Division vide his orders : (1) l/Refund/9/78, dated 7-9-78 ; (2) l/Refund/10/78, dated 7-9-78 and (3) V/10/18/4/7838, dated 1-9-78 rejected the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of rebate of duty on excisable goods if exported outside India 'to such extent and subject to such safeguards, conditions and limitations as regards the class of the goods, destination, mode of transport and other allied matters as may be specified therein'. This shows that under Rule 12 the extent to which the rebate of duty could be given can be specified. Rule 13 of the Central Excise Rules uses the expression 'may in like manner be exported without payment of duty'. It would appear that although this Rule does not deal with the question of exemption of duty, it would be reasonable to take the view that the intention of the rule is not that duty exemption should be given in respect of goods if the same do not enjoy such rebate und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter consideration of the Respondent's submissions. By their reply dated 14-10-1981, the Respondents denied all the allegations set out in the show cause notice and stated that the Appellate Collector's Order was correct, legal and proper and called for no review. 5. On the setting up of this Tribunal, the above proceedings were transferred to it for disposal as if it were appeal filed before the Tribunal. 6. In the hearing before us, Shri A.S. Sunder Rajan, Deptl. Representative, relied upon this Tribunal's Order No. C-156-157/1985, dated the 19th February, 1985 in Appeals Nos. ED (SB) (T) A. 1302 and 1681/1981-C filed by the very same assessee in support of the Department's stand as set out in the show cause notice. 7. In reply, Shri D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the Atma Steel case said was that the Tribunal had the judicial freedom to choose from among conflicting decisions of different High Courts and apply the one which appeared to the Tribunal to be most appropriate in the given situation. 10. We, however, see considerable force in the other submissions of Shri Bhave. Rule 9 provides that no excisable goods shall be removed from any place where they are produced, cured or manufactured, or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place unless the excise duty leviable thereon has been paid. One of the exceptions to this general provision is that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without payment of duty, the conditions prescribed therefor and the consequences in the event of breach of the conditions. The scheme does not envisage levy of duty except on the happening of one or the other of the contingencies such as diversion for home-consumption, failure to export or to furnish proof of export. There is, thus, a good deal of force in the Respondents' contention that the levy of duty to the extent of the unrebated amount of duty (in terms of Central Excise Notification No. 349/77, dated 16-12-1977 providing for reduction of rebate of duty by specified amounts in respect of specified goods exported under claim for rebate of duty in terms of rule 12) on exports in terms of Rule 13 is not warranted. 12. We have dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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