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TMI Blog2013 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... arker to various locations across India. The product Marker was imported in bulk from Authentix Ltd., UK ('Authentix') and marketed in India subsequent to repacking the same into 5 litre retail jar pack. As Marker is classified under Heading 2902 90 90 of the First Schedule to the Central Excise Tariff Act, 1985, the process of conversion from bulk to retail pack amounts to manufacturing in terms of Chapter Note 10 of the Chapter 29 of the Central Excise Tariff Act, 1985. Accordingly, the applicants obtained Central Excise Registration under the provisions of the Central Excise Act, 1944 at a factory located at Bhiwandi and removed the repacked Marker to its various depots located across the country after discharging appropriate excise duty liability. However, the applicants discontinued the Marker business in January, 2009, pursuant to which the balance goods lying at the depots were brought back to the factory. At this juncture, since the goods were originally removed on payment of applicable excise duty, the said duty paid at the time of removal of were availed as Cenvat credit in terms of provisions of Rule 16 of the Central Excise Rules, 2002. The brought back Marker con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Appeal, the applicant has filed these Revision Applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 The applicants submit they have imported the marker in bulk quantity on which CVD has been paid. The applicants packed the marker in retail packs from bulk pack and in terms of Chapter Note 10 to Chapter 29, the process of packing of the Marker from bulk pack to retail pack is amounting to manufacture. Therefore, the applicants paid excise duty as and when the said goods were cleared to depot of the applicants. The said Central Excise duty paid goods were returned back to the factory of the applicants and in terms of Rule 16 of the Central Excise Rules, 2002, the applicants have availed the credit on the said duty paid goods which were undisputedly manufactured by the applicants in view of the Note 10 to Chapter 29 of the Central Excise Tariff read with Section 2(f)(ii) of the Central Excise Act, 1944. The retail packs of markers, which were the excisable goods manufactured by the applicants, were further converted into the bulk packs. According to the Central Excise department, the said activity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the applicants. Thus, under the circumstances, your goodself will appreciate that the applicants has actually deposited the duty into the treasury of the Government at the time of removal of goods from the factory. However, owing to non-renewal of contract when the goods could not be sold to OMCs, they were brought back to the applicant's factory. The said goods were then ultimately re-exported after following the procedure prescribed under Rule 18 of Central Excise Rules, 2002. 4.3 In support of the above view, the Hon'ble Tribunal in the case of Nicco Corporation Ltd. v. CCE, Calcutta-II - 1995 (79) E.L.T. 437 (T). In this case, the applicant had filed refund claim of goods returned to the factory under Rule 173L of the erstwhile Central Excise Rules, 1944. The lower authorities rejected the refund claim on the ground that reconditioning in the Rule 173L should amount to remanufacture and the best course for the applicant was to re-issue the goods without payment of duty under Rule 173H. The said Rules 173H and 173L of the erstwhile Central Excise Rules, 1944 prescribed the manner required to be adopted for goods returned to factory. Rule 173H refers to goods returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicants further conveys a respectful submission that, it is a settled position of law that once duty on the final product is paid and accepted, rebate of such duty paid, allowed under any of the prescribed routes is not deniable on the basis of any superfluous ground. The applicants strongly contends that for the purpose of export, manufacture need not be an activity envisaged under Section 2(f) of the Central Excise Act, 1944 since the intention of Government if to promote export and to free the export goods from domestic taxes. Thus, denial of rebate of duty actually paid on the exported excisable goods on the basis that process to which goods were subjected doesn't amount to manufacture is ill-founded and cannot be sustained. The applicant relied upon various case laws in favour of their contention. 4.7 The applicants would like to further draw your attention to the extract of the relevant Circular No. 283/117/96-CX issued on 31 December, 1996 stating that clearance of inputs as such for export under bond can be treated at par with final product. The above referred circular refer that a manufacturer will be entitled to rebate of duty paid on inputs expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f said amount may be allowed. In this regard, Government observes that there are following two situations, in said Rule 16(2). (a) goods may be subjected to any process not amounting to manufacture in such case an amount equal to the Cenvat credit taken under sub-rule (1) shall be paid. (b) in another case, the manufacturer shall pay duty at appropriate rate based on value determined under Sections 3(2), 4 or 4A of Central Excise Act, 1944. Applicant has worked under situation (a) where Cenvat credit was reversed. The fundamental condition for determining admissibility of rebate claim is that duty paid excisable goods are exported. In this, case equal amount of Cenvat credit was reversed under Rule 16(2) and said reversal of Cenvat credit cannot be treated as payment of duty for the purpose of Rule 18 of Central Excise Rules, 2002. Since, duty paid excisable goods are not exported in this case, the rebate claim is rightly held inadmissible by original authority as well as appellate authority. 9. The applicant has also declared on the Commercial Invoice that consignment is "Re-export under Section 74 of Customs Act". It is a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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