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TMI Blog2013 (10) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption under Notification No. 30/2004-C.E., dated 9-7-2004. They are also availing Notification No. 29/2004-C.E., dated 9-7-2004 and paying duty on the similar goods after availing Cenvat credit on inputs used in the manufacture of such dutiable goods. When any goods or class of goods are fully exempt from payment of duty under one Notification and are chargeable to a given rate of duty under another Notification, then in view of sub-section (1A) of Section 5A of the Central Excise Act, 1944, the manufacturer does not have any option but to avail the exemption as clarified by the C.B.E. & C. vide it's Circular No. 937/27/2010-CX, dated 26-11-2010. It, therefore, appears that when there is an exemption, the assessee/manufacturer cannot disclaim it's benefit, pay duty and thereafter claim rebate of duty. The Notification granting such exemption has statutory force and payment of duty contrary to the notification would be without sanction of law and therefore not entitled for rebate". 2.2 The above deficiencies were communicated to the claimant vide deficiency memo-cum SCN issued under F. No. V/15-Gr.IX/Reb/Garden/Rgd./ 12/1608, dated 9-2-2012. The claimant replied the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer programme continued superscribing the invoices with Notification No. 29/2004 which was being availed by them prior to 1-3-2006. They have corrected the error immediately. 2.3 After following the due process of law, adjudicating authority held that said goods were fully exempt from payment of Central Excise 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 & C.B.E. & C. Circular No. 937/27/2010-CX, dated 26-11-2010, they were not required to pay duty and then afterwards claim rebate of duty. Accordingly he rejected the said rebate claims. 3. Being aggrieved by the impugned order-in-original, applicant filed appeal before Commissioner (Appeals) who held that Notification No. 30/2004-C.E. is a conditional notification since the said exemption is available only if Cenvat credit on input is not availed. In this case as per declaration in ARE-1 form, applicant had availed Cenvat credit on inputs. Therefore, the benefit of said notification was not available in this case and there was no question of applying the provisions of Section 5A(1A) of Central Excise Act, 1944. Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2002. Without availing facility under Notification 21/2004-Central Excise (N.T.), dated 6th September 2004, issued under Rule 18 of Central Excise Rules, 2002. Without availing facility under Notification 43/2001-Central Excise (N.T.), dated 26th June, 2001, issued under Rule 19 of Central Excise (No. 2) Rules, 2001. 4.2 The concerned Notification 21/2004-Central Excise (N.T.), dated 6th September, 2004 allows rebate of whole of duty paid on excisable goods used in the manufacture of or processing of exports goods under Rule 18 of Central Excise Rules, 2002 and assessee is not availing of the same. The concerned Notification 43/2001-Central Excise (N.T.), dated 26th June, 2001 allows conditions, safeguards and procedures for procurement of the excisable goods without payment of duty for the purpose of use in the manufacture or processing of export goods under Rule 19(2) of Central Excise Rules, 2002 and assessee is not availing of the same. 4.3 The Excise Invoice and ARE-I also show that duty has been paid while exportation of the finished goods, which means that assessee has availed of facility under Rule 18 of Central Excise Rules, 2002 of "Rebate of Duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Omkar Textile is grossly misplaced. 4.6 The Commissioner (Appeals) has failed to appreciate that even if Condition No. (viii) is assumed, without admitting, to have been violated then also the natural corollary cannot be denial of rebate of the duty paid on the finished goods. The remedy may lie somewhere else like denial of exemption or the advance licence facility under subject Notification No. 96/2009. The Commissioner (Appeals) has thus grossly compounded his first mistake by resorting to totally wrong and uncalled for remedy. 4.7 Since the Commissioner (Appeals) has already held that the rebate claims were not liable to be rejected on the ground that the goods were fully exempted under the Notification No. 96/2009 and it was obligatory for the applicant to avail the full exemption by dent of Section 5A(1A), the applicant do not consider it necessary to repeat and deal with the grounds which they have taken up in the first appeal filed before the Commissioner (Appeals). All the same, for abundant caution, it is prayed that all those grounds taken up in the first appeal may be considered for the present appeal also, with mutatis mutandis challenges, as if they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.E. (N.T.), dated 26-6-2001 and therefore they were not eligible to avail benefit of Notification No. 30/2004-C.E. In view of this factual position, Commissioner (Appeals) has rightly held that applicant was not entitled to pay duty under Notification No. 30/2004-C.E. and correctly paid duty under Notification No. 29/2004-C.E. Government further notes that even otherwise the provisions of Section 5A(1A) of Central Excise Act, 1944 are not applicable in case of Notification No. 30/2004-C.E. since it is a conditional notification. Similarly the C.B.E. & C. Circular No. 937/27/2010-CX, dated 26-11-2010 is not issued in the context of Notification No. 30/2004-C.E. but it was issued in the context of Notification No. 29/2004-C.E. (N.T.) amended by Notification No. 58/2008-C.E., dated 7-12-2008 reducing the duty on certain textile items to 0% unconditionally. So, there is no applicability of said C.B.E. & C. circular to the instant case since the duty on Polyester Texturised Yarn was never reduced to zero unconditionally and the anomaly pointed out was removed after issue of Notification No. 11/2009-C.E., dated 7-7-2009. Moreover, the export clearances of this case pertain to the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (284) E.L.T. 302 (G.O.I.). Government notes that in the said case exporter M/s. Omkar Textile has purchased inputs i.e. Linear Alkyl Banzone (LAB) and Sulphuric Acid and used the same in the manufacture of exported goods. They had claimed rebate of duty paid on inputs (LAB) used in the manufacture of exported goods. Government had denied the input rebate claim in the said case since final goods were exported in discharge of export obligation under Advance License Scheme in terms of Notification No. 93/2004-Cus., dated 10-9-2004 as there was similar Condition No. (v) in the said notification which was exactly similar to Condition (viii) of Notification No. 96/2009-Cus., which debarred the exporter from claiming input rebate claim i.e. rebate of duty paid on inputs/raw materials used in the manufacture of exported goods. In that case the inputs rebate claim was disallowed, whereas in the instant case applicant has claimed rebate claim of duty paid on (finished) exported goods. As per Condition (viii) of Notification No. 96/2009-Cus. or Condition No. (v) of Notification 93/2004-Cus. relating to advance licence scheme, there is no restriction on availing the facility of rebate claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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