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TMI Blog2015 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.04 subject to the condition that the provision of Notification No.19/04-CE(NT) dated 6.9.04 are complied and rebate claim is otherwise in order. - Following decision of Sterlite Industries Ltd. Raigarh [2011 (3) TMI 1556 - BOMBAY HIGH COURT] - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... s no dispute that the manufacturer had removal the Excisable Goods (capital goods) from his factory under an invoice issued under rule 11 of Central Excise Rules, 2002. Under the provision of rule 8(1) of Central Excise Rules, 2002, the duty on the goods removal from the factory during the month shall be paid by the 5th day of the following month. By explanation (a) of the rule, the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specific date. As soon as, the manufacturer debits the amount of duty payable, in the CENVAT Credit register, it means, the duty liability has been discharged Under Explanation of Rule 8(4) of. Central Excise Rules, 2002/ it is stated that for the purpose of this rule, the `expression "duty" or "duty of excise" shall also include the amount payable in terms of Cenvat Credit Rules, 2004. Therefore any amount debited in CENVAT Credit register, is nothing but payment of duty. 4.2 The applicant had cleared and tfie exported capital goods (Excisable goods) as such from the factory, on reversal of Cenvat credit, in terms of rule 3(5) of CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir manufacturing purpose. The said D.G. sets were exported on payment of excise duty by way of payment made in terms of Rule 3(5) of Cenvat Credit Rules 2004. 5.2 The Applicant rely upon the following decisions under which the Joint Secretary has held that an amount equal to Cenvat credit taken on inputs or capital goods debited on removal of inputs and capital goods as such in terms of Rule 3(4)(b) & 3(5) of Cenvat Credit Rules, 2004 is to be treated as Payment of duty of excise for the purpose of Rule 18 of the Central Excise Rules, 2002 read with the notification issued thereunder. Hence, rebate claim is admissible to the applicant under Rule 18 of Central Excise Rules. • In the Matter of M/s C.C.E, Raigad vs. Cello International Pvt. Ltd. vide their Govt. of India No.356/07 dated 27.06.2007 under F.No.198/368/06-RA. Vide the above Ruling the Joint Secretary has decided that if duty has been paid on goods exported as such then rebate shall be granted equal to the Cenvat Credit taken on the inputs or capital goods. • In the Matter of M/s Century Enka Ltd., Pune (GOI Order No.1706/10-CX dt. 23.11.2010 under RA file No.195/542/09-RA), the Joint Secretary has held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/09 24.03.2011 9. Hon'ble High Court of Bombay has dismissed all these writ petitions and upheld GOI Revision orders. Hon'ble High Court in its: judgement dated 24.3.11 in the case of Sterlite Industries India Ltd. in para 4 to 9 has held as under: "4. The case of the revenue in this Writ Petition is firstly, that the reversal, of credit equal to the amount of duty cannot be said to be payment of duty under Rule 18 of the Central Excise Rules, 2002 and consequently the assessee is not entitled to claim rebate on 'such reversal of credit. Secondly, the capital goods were not exported directly from the factory of the manufacturer as contemplated under Notification No.41/94 dated 12/9/1994, Circular No.294/97 dated 30/1/1997 and Notification No.19/2004 dated 6/9/2004 and, therefore, the rebate claim is liable to be rejected Thirdly, the capital goods imported by the assessee have been used by the assessee for several years and, therefore, the export of capital goods cannot be said to be "removed as such" as provided under Rule 3(5) of the Cenvat Credit Rules, 2004. 5. We see no merit in the above contention. Reversal of input credit is one of the recogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs/capital goods does not make them different from the original inputs/capital goods Moreover, it is not the case of the revenue that on account of the user, the character of the capital goods has changed Therefore, where duty paid inputs/capital goods brought into the factory are subsequently cleared for export, then Rule 3(5) of 2004 Rules would apply. Hence, the Joint Secretary to the Government of India was justified in holding that user of the capital goods before export does not in any way affect the duty liability on export of such capital goods and consequently does not affect the right of the assessee to claim rebate of duty paid on export of such capital goods. 9. For all the aforesaid reasons, we see no merit in the petition and the same is hereby dismissed with no order as to costs." Government notes that ratio of said judgement is squarely applicable to this case as the facts of instant case and that of cited case are identical. 10. Government notes that Hon'ble Supreme Court has held in the case of UOI Vs. Kamalakshi Finance Corporation Ltd. 1991 (55) ELT 433-SC that orders of appellate authority are to unreservedly followed by subordinate authorities u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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