9911796707
TMI Blog2013 (10) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate claims had not found any other discrepancy in the rebate claim other than the discrepancy noted. As such, it is clear that rebate claims were found in order and there was no dispute about the export of duty paid goods. As such the fundamental condition for allowing rebate claims that duty paid goods are exported, already stands satisfied in this case. Therefore, the said rebate claims are admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided in favour of assessee. - F. No. 195/67/13-RA - 1330/2013-CX - Dated:- 21-10-2013 - Shri D.P. Singh, Joint Secretary Shri Willingdon Christian, Advocate, D. Chatterjee, Vice President D.P. Marathe, Sr. General Manager, for the Appellant. None, for the Respondent. ORDER This revision application is filed by the applicant M/s. Garden Silk Mills Ltd., Surat against order-in-appeal No. US/665/RGD/2012, dated 16-10-2012 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II with respect to Order-in-Original passed by the Deputy Commissioner of Central Excise (Rebate), Raigad. 2. Brief facts of the case are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are first of all not covered by Notification No. 29/2004 in the first place inasmuch as from the year 2006 i.e. from 7-3-2006 onwards they have been paying the effective rate of duty under an unconditional Notification No. 5/2006, dated 7-3-2006. Therefore, question of applying Circular No. 937 to this case does not arise. Notification No. 29/2004 and 30/2004 are both conditional notifications in so far as the taxability of textured yarn is concerned. Meaning thereby that Notification No. 29 prescribes an effective rate of duty 8% and 15% (against the tariff rate of 16%) for a texturiser who do not have the POY spinning machinery in his factory by allowing the Cenvat credit. Similarly, Notification No. 30 prescribes NIL rate of duty without availing Cenvat credit again with a condition that the assessee should not possess POY spinning machinery. They have been availing the Notification No. 5/2006 which is an unconditional notification right from 2006 for paying the effective rate of duty of 8% or 10% as the case may be, and also availing benefit of Notification No. 30/2004 for removing their other products namely, Draw Twisted Yarn, Draw Wound Yarn, Draw W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) has committed a grave error by passing the impugned order on an extraneous ground not contained in the Order-in-Original impugned before him. Having found, at the first blush, the Order-in-Original to be incorrect and illegal, he could not have upheld it on an extraneous ground, while deciding the appeal filed by the other side i.e. the present applicant. Even otherwise the Commissioner (Appeals) has wrongly held that the applicant violated Condition No. (viii) of the Notification No. 96/2009-Cus. The said Condition No. (viii) debars an Advance Licence Holder from availing the following two facilities, namely : (a) The facility of rebate of duty on material used in the manufacture of resultant product under Rule 18 and (b) The facility of clearing final/export product under Bond under sub-rule (2) of Rule 19. This allegation is wrong in fact and ground reality. As an example we are enclosing the connected documents in Annexure to Order-in-Original No. 2331/11-12/D.C. (Rebate)/Raigad, dated 29-2-2012 at Sr. No. 40, Excise Invoice No. EXP-245, dated 31-10-2011 and ARE No. 507/11-12 of same date. At the bottom of the front page, the following d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the words and figures Rule 18 in the said Condition No. (viii), the words (rebate of duty paid on materials used in the manufacture of resultant product) are mentioned. This would only and obviously mean that what was included in the said Condition No. (viii) for debarment was not the entire Rule 18. But, it was only part of Rule 18 dealing with rebate on raw materials which was included in the Condition No. (viii), for such debarment. Thus, even this new ground unjustly introduced for the first time by the Commissioner (Appeals) has no merits and the impugned order deserves to be set aside on any count whatsoever. 4.5 The Commissioner (Appeals) has grossly misguided itself by placing reliance on the order of Government of India in case of M/s. Omkar Textile Mills reported in 2012 (284) E.L.T. 302 (G.O.I.). In that case, the exporter M/s. Omkar Textile had purchased Linear Alkyl Benzene (LAB) and Sulphuric Acid as inputs for manufacture of their final products and after exporting the final product, they had claimed rebate of excise duty paid on the aforesaid LAB. If that is so, the case of Omkar Textile clearly falls in the debarred category of rebate in Condition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty under Notification No. 30/2004-C.E., dated 9-7-2004 and in view of provisions of Section 5A(1A) of Central Excise Act, 1944, applicant had no option to pay duty and claim rebate claim. In appeal, Commissioner (Appeals) held that applicant had availed Cenvat credit on the inputs and they were not eligible to avail Notification No. 30/2004-C.E. and duty was rightly paid under Notification No. 29/2004-C.E., dated 6-4-2004. Commissioner (Appeals) held that rebate claim could not be rejected on the grounds taken by adjudicating authority. However, he disallowed the rebate claims on the ground that applicant had exported the goods in discharge of export obligation under Notification No. 96/2009-Cus., dated 11-9-2009 and as per Condition (viii) of said notification rebate of duty under Rule 18 of Central Excise Rules, 2002 is not admissible. Now applicant has filed this revision application on the grounds mentioned in para (4) above. 8. Government notes that applicant has paid duty on exported goods under Notification 29/2004-C.E. (N.T.) and claimed rebate of duty paid on exported goods under Rule 18 of Central Excise Rules, 2002. Commissioner (Appeals) has held in order-in-appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, manufactured in India which are specified in the said authorization and in respect of which facility under Rule 18 (rebate of duty paid on materials used in the manufacture of resultant product) or sub-rule (2) of rule 19 of the Central Excise Rules, 2002 has not been availed : Provided that an Advance Intermediate authorization holder shall discharge export obligation by supplying the resultant products to exporter in terms of paragraph 4.1.3 (ii) of the Foreign Trade Policy; The said Condition No. (viii) debars availment facility of rebate claim on duty paid on materials used in manufacture of resultant product under Rule 18 and also the facility of duty free procurement of raw materials under Rule 19(2) of Central Excise Rules, 2002. The applicant has claimed rebate of duty paid on final product and not of duty paid on raw materials/inputs used in manufacture of final resultant product exported as is evident from the order-in-original. There is a categorical declaration in the ARE-1 form that no facility of Notification 21/2004-C.E. (N.T.), dated 6-9-2004 i.e. input rebate claim and under Notification 43/2001-C.E. (N.T.), dated 26-6-2001 i.e. duty free procured of raw ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
