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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 ..... duty of excise would mean the duty payable under the provision of Central Excise Act. Any amount paid in excess of duty liability on one’s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. - Government set aside the impugned orders-in-appeal and restores the impugned orders-in-original. Government further observe that excess paid amount of duty in case of short realization of export sale proceeds may be returned to the respondent as recredit in their Cenvat credit account. - Decided in favour of assessee. - F. Nos. 198/186-187/2011-RA-CX - Order Nos. 1651-1652/2012-CX - Dated:- 6-12-2012 - Shri D.P. Singh, Joint Secretary B.S. Bhandari, Assistant Commissioner, for the Department. Sanjeev Mishra, DGM (JSL) and K.P. Gupta, Advocate, for the Assessee. ORDER These revision applications are filed by the applicants Commissioner of Central Excise, Rohtak against the order-in-appeal No. 379 and 380/BK/RTK/2010, dated 28-9-2010 passed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is required to submit the BRC within 160 days of the sanction of the rebate claim. The scrutiny of applicant s BRC has revealed that the amount of BRC as compared to the amount of ARE-1 has been realized less to the tune of ₹ 4,73,806/- and ₹ 1,02,022/- respectively. In this way, the amount realized as per the BRCs did not fulfill the requirement of the Central Excise Law in force, hence two SCNs were issued on 22-10-2008. The case was adjudicated and demand was confirmed with interest and penalty under Sections 11A and 11AB of the Central Excise Act, 1944 read with Rule 27 of Central Excise Rules, 2002. 3. Being aggrieved by the said orders-in-original, respondent filed appeal before Commissioner (Appeals) who set aside the orders of adjudicating authority and allowed the appeal. 4. Being aggrieved by the impugned orders-in-appeal, the applicant department has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 Commissioner (Appeals) has erred in observing that the Board s instruction regarding submission of BRC within 160 days for the purpose of recovering of sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued under Rule 18 and C.B.E. C. s Excise Manual of Supplementary Instructions for submission of BRCs in order to claim rebate of Excise duty paid on export goods. In the present case it is an admitted position that the goods have been duly exported and duty has been paid on the goods exported by the respondent. Therefore, there is no reason for the Department to disallow rebate claim merely for short realization against certain export invoices. Paragraph 8 of Chapter-8 of C.B.E. C. s Excise Manual does not provide the requirement of BRCs in order to sanction rebate claim. 5.2 The Central Excise authorities are not permitted to invoke provisions of FEMA as the said authorities are appointed under the provisions of Customs Act. Therefore, the invocation and relying upon provisions of FEMA in order to disallow rebate claim, is without an authority of law. Reliance is placed on the decision of Hon ble Tribunal in case of Bank of Nova Scotia v. Commissioner of Central Excise, Bangalore - 2008 (228) E.L.T. 474 (Tri.-Bang.) wherein it was held that customs authorities lack jurisdiction to take action on non-realization of sales proceeds of export as it was governed by FEMA and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date ARE-1 No. Date Amount (Rs.) 183 26-10-2007 0045 9-4-2007 2,40,22,123 204 13-12-2007 0441 28-5-2007 0442 28-5-2007 2,62,94,276 221 19-12-2007 343 26-10-2007 2,09,93,178 (ii) A show cause notice dated 22-10-2008 was issued by the learned Asstt. Commissioner seeking to recover duty amounting to ₹ 1,02,022/-, which was sanctioned and granted vide the aforesaid Adjudication Orders on the ground that the respondent had not furnished Bank Realization Certificates (BRCs). (iii) That against ARE-1 No. 441, dated 28-5-2007 and 442, dated 28-5-2007 (A.O. No. 204), the appellant had realized entire sales proceeds and they enclosed BRC issued by State Bank of India, Hissar, therefore, the demand of duty to this extent i.e. ₹ 61,185/- [Rs. 33,750/- + ₹ 27,415/-] wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 530, dated 22-10-2007 (AO No. 209) and 1394, dated 29-9-2007 (A.O. No. 208), and ARE-1 No. 1408, dated 29-9-2007 (A.O. No. 208), the appellant had realized entire sales proceeds. Therefore, the demand of duty to this extent i.e. ₹ 1,85,952/- was liable to be set aside on this factual ground alone, since the allegation of non-submission of BRC does not remain. 6. Personal hearing was scheduled in this case on 7-8-2012 and 9-10-2012. Shri B.S. Bhandari, Assistant Commissioner, Central Excise, Rohtak appeared for hearing on 9-10-2012 on behalf of the applicant department and reiterated the ground of revision application. Shri Sanjeev Mishra, DGM, Jindal Stainless Ltd. and Shri K.P. Gupta, Advocate, appeared for hearing on 9-10-2012 on behalf of the respondents and reiterated the submission made in their written counter reply dated 2-6-2011. 7. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 8. On perusal of records Government observes that the respondents M/s. Jindal Stainless Ltd. (JSL) are engaged in the clearance of impugned goods in domestic market; export under Bond as well as export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cs which were not considered by original authority but accepted by Commissioner (Appeals). In this regard, Government observes that the said BRCs had over writings and therefore were slightly found as invalid documents by original authority. Government notes that as per condition at Para 2(g) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, rebate of duty paid on those excisable goods export of which is prohibited under any law for the time being in force, shall not be made. As per Section 8 of FEMA, 1999, where any amount of foreign exchange is due or has accrued to any person resident in India, such person shall take all reasonable steps to realize and repatriate to India such foreign exchange within time period prescribed by RBI. Further Section 13 of FEMA stipulates the penalty provision for non-realisation of foreign exchange. The provisions of FEMA makes it clear that the export of goods without realization of export proceed, is not permitted and there is a prohibition on such exports. Since valid BRCs are not submitted, the goods are treated to be exported in violation of Sections 7, 8 of FEMA, 1999, attracting penalty under Section 13. So, in such cases the rebate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion value of the goods as prescribed under section 4 of the Central Excise Act, 1944. However, it is also fact that the respondents have paid excess duty to the tune of ₹ 2,35,192/- which is to be refunded to the respondents in the manner in which it was paid. 9.5 In view of facts and circumstances, Govt., is of the considered opinion that the impugned Order-in-Appeal is not maintainable and Govt., accordingly sets aside the impugned Order-in-Appeal. Govt, also permits the respondents to take back the Cenvat Credit of ₹ 2,35,192/- which is related to Central Excise duty paid on CIF value of the impugned goods. 10.2 It has been stipulated in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the C.B.E. C. Circular No. 510/06/2000-CX, dated 3-2-2000 that rebate of whole of duty paid on all excisable goods will be granted. Here also the whole duty of excise would mean the duty payable under the provision of Central Excise Act. Any amount paid in excess of duty liability on one s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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