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TMI Blog2015 (3) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter 7220.10 and 7219.10 and waste and scrap of stainless steel falling under Chapter 7204.20 of the Central Excise Tariff Act, 1985. They are availing of Cenvat credit facility under Cenvat Credit Rules, 2002 and 2004 as amended. They are engaged in the clearance of their goods in the domestic market, as well as export under Bond and also export on payment of duty. 2.1 The respondents filed their Rebate claim of duty paid on exports to different countries from their factory premises, as well as from the premises of their job worker in terms of Rule 18 of the Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The respondents at the time of filing the rebate claims, submitted the copies of the export documents such as ARE-1, shipping bill, bill of lading and mate receipts. The respondents failed to produce the copies of the BRCs, along with the above said rebate claim. The rebate claims were sanctioned by the Asstt. Commissioner, Central Excise Division, Hissar. 2.2 When any rebate of duty paid on exported goods has been paid to an exporter; but the entire sale proceeds in respect of the said goods have not been realized by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectly in terms of Section 4 of Central Excise Act, 1944 and then to be paid as rebate in terms of Rule 18 of Central Excise Rules, 2002. Instructions issued by RBI as relied by Commissioner (Appeals) does not govern the provisions of assessments under Central Excise Act/Rules, but help in regularizing the short recovery of foreign exchange based on fair business principle. 4.3 Any excess duty paid or short duty paid by an assessee at the time of clearance, are required to be finally assessed as per value first and then only appropriate rebate is required to be sanctioned. If rebate already sanctioned is less than duty payable, further duty will be recovered and rebate sanctioned thereafter, if claimed. In other situation where duty payable becomes lesser, the excess rebate already sanctioned will require recovery under Section 11A of Central Excise Act, 1944 with interest and penalty in case mis declaration or suppression is noticed. In view of the foregoing, the adjudicating authority had rightly rejected the party's rebate claim amounting to Rs. 1,02,022/- and Rs. 4,73,806/- respectively in terms of Section 11A of the Central Excise Act, 1944, imposed penalty of Rs. 5,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70/97-CX., dated 13-11-1997 it is submitted that the said Circular is not applicable to the facts of the present case. This circular provides that in specific circumstances BRC can be used as a collateral evidence for export of goods only in case where T.R. (transference copy) was not received by the customs department within the stipulated period in case of export of goods through ICD/CFS. In the present case there being no dispute about export of goods and the evidence produced by the respondents in this respect, the said Circular cannot be used to disallow the rebate claim to the respondent. 5.5 It is a well settled law that Central Excise authorities are not permitted to raise demand merely on the basis of a Board's Circular without any support of law. Such circulars issued by Board are merely an expression of their opinion and cannot be substituted with the provisions of law enacted by the Parliament. In this respect the decision of Hon'ble Supreme Court in case of Orient Paper Mills Ltd. v. Union of India - 1978 (2) E.L.T. J345 is relevant. Other case laws relied upon by the respondent are : * Sandur Micro Circuits Ltd. v. CCE - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0". 5.8 In respect of revision application No. 198/187/11 with reference to O.I.A. No. 380/BK/RTK/10, dated 28-9-2010 respondent stated as under : (i) The Asstt. Commissioner, after verifying the documents evidencing export of goods allowed rebate claim by following adjudication orders : A.O. No. Date ARE-1 No. Date Amount (Rs.) 180 24-10-2007 666 505 24-6-2007 31-5-2007 2,12,53,881 208 19-12-2007 1323 1217 1394 1408 17-9-2007 2-9-2007 29-9-2007 29-9-2007 2,12,92,534 209 19-12-2007 1530 22-10-2007 2,06,38,318 (ii) A show cause notice, dated 22-10-2008 was issued by the learned Asstt. Commissioner seeking to recover duty amounting to Rs. 4,73,806/-, which was sanctioned and granted vide the aforesaid adjudication orders on the ground that the respondent had not furnished Bank Realization Certificates (BRCs), for the entire (full) amount of value declared in the ARE-1s. (iii) That against ARE-1 No. 1530, dated 22-10-2007 (AO No. 209) and 1394, dated 29-9-2007 (A.O. No. 208), and ARE-1 No. 1408, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Master Circular No. 9/2007-08, dated 2-7-2007 which reveals that if the reduction in value involved does not exceed 25% and the realization of export is not delayed beyond the period of six months then prior approval is not required. He, accordingly set aside the orders of adjudicating authority and allowed the appeal in the favour of respondents. Now the applicants have filed the Revision Application on the grounds stated at para 4 above. 9. The respondents have stated in their counter reply that in respect of cases in R.A. No. 198/186/11, they were sanctioned total rebate claims of Rs. 7,13,09,577/- out of which show cause notice was issued for recovery of only Rs. 1,02,022/- and similarly in respect of cases in R.A. No. 198/187/11, they were sanctioned total rebate claim of Rs. 6,31,84,733/- out of which show cause notice was issued for recovery of Rs. 4,73,806/-. The ground for recovery of said amount was non-submission of relevant BRCs and short realization of export sale proceeds. Respondent has contended that for part amount of recovery, they had submitted BRCs which were not considered by original authority but accepted by Commissioner (Appeals). In this regard, Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944. C.B.E. & C. vide their Circular No. 203/37/96-CX, dated 26-4-1996 has also clarified that AR-4 value should be determined under section 4 of the Central Excise Act, which is required to be mentioned on the invoices issued under rule 52A of the Central Excise Rules, 1944. In the instant case the respondents themselves have admitted in their letter of cross objection dated 26-5-2005, that they have paid Central Excise duty on CIF value of the impugned goods for purpose of claiming rebate under rule 18 of the Central Excise Rules, 2002. Govt, therefore, would agree with the contention of the Applicant Commissioner that as per provisions of section 4(1)(a) and 4(2)(d) of Central Excise Act, 1944 the value in terms of section 4 should be the amount that the buyer of the exported goods is liable to pay. In the instant case, the buyer of the exported goods had paid an amount as shown in the Bank realization certificate. In any case the respondents are not liable to pay Central Excise duty on the CIF value of the goods but the Central Excise duty is to be paid on transaction value of the goods as prescribed under section 4 of the Central Excise Act, 1944. However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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