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TMI Blog2014 (12) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... n/procedure as laid down in Notification No.19/04-CE (NT) yet the fact remains that duty paid nature of the exported goods is still in dispute. The fundamental condition for granting rebate is that duty paid nature of exported goods is established. The proceeding have been initiated vide the impugned show cause notice dated 23.02.2010 for recovery of wrongly availed cenvat credit as well as erroneously sanctioned rebate claims and adjudication proceedings are pending before Commissioner of Central Excise. In view of this position, it is premature to decide the admissibility of rebate claim till the show cause notice dated 23.02.2010 pending adjudication before Commissioner of Central Excise (Adj), New Delhi is decided. The Government do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 14.11.2002. The applicant was availing the Cenvat Credit of duty paid on the inputs shown to have been procured from the J K region under the provision of Rule 12 of the Cenvat Credit Rules, 2004. 2.1 The adjudicating authority processed the rebate claims and sanctioned the same vide impugned orders-in-original. 3. Being aggrieved the department filed appeals before comm(A) against above said impugned orders-in-original, who decided the appeals by way of remand vide Orders-in-Appeal No. 50-56-CE/MRT-II/2009 dated 29.01.2009. the applicant filed revision applications before the joint-Secretary (Revision Application) on the ground that comm (A) has no power of remand. The Joint Secretary (Revision Application) vide Revision order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty from CENVAT credit account in accordance to Rule 8 of the Excise Rules. Rule 8 of the Excise Rules, prescribes the manner for payment of duty. Sub-rule (1) provides that duty on goods removed during a month is to be paid by 5th or 6th date of following month. Sub- rule (2) provides that duty of excise of duty shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under Sub- rule(1) In view of this the Applicant submits that since duty on export goods was paid in terms of rule 8 (1) of the excise Rules, the same in terms of Rule 8 (2), ibid, would be deemed to have been paid for the purpose of the Excise rules. Accordingly, the said duty would be deemed to have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it account is not a duty paid under Rule 8 of the Excise Rules the matter involving rebate claims of such duties would also remain premature for decision by the Government of India in revisionary application till the issue of admissibility of CENVAT credit is finally decided by the CESTAT or the Hon'ble Supreme Court, as the case may. In such eventuality, authority of Joint secretary (RA) of the Government of India becomes redundant for the purpose of deciding revision applications relating to such rebate claims which can never be the intention of law. 4.6 Further, in the instant matter department's interest is secured as the department has already initiated action for recovery of irregular CENVAT credit through independent proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the relevant case records/available in case files, oral written submissions and perused the impugned Orders-in-Appeal. 7. On perusal of records, Government observes that the original authority initially sanctioned rebate claims. The department preferred appeals before Commissioner (A) against impugned orders-in-original on the ground that duty was paid on exported goods from fraudulently availed cenvat credit in respect of inputs shown to have been procured from various units including the units situated in Jammu Kashmir who were availing area based exemptions but actually no inputs were received by the applicant. Commissioner (Appeals) decided the cases by way of remand vide order-in-appeal N4.50-56-CE/MRT-1I/2009 dated 29.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. The governing statutory provisions of grant of rebate are contained Rule 18 of Central Excise Rules, 2002 which reads as under: Rule 18: Rebate of Duty. Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations if any, any fulfilment of such procedure, as may be specified in the notification. The condition 2(a) of Notification No.19/04-CE(NT) dated 6.9.04 stipulates that all excisable goods shall be exported after payment of duty directly from factory. The said provisions stipulate that rebate shall be g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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