9911796707
TMI Blog2013 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... the said ARE-1 varied from 10.3% to 16.48% to 14.42% whereas he had reversed the equal amount of Cenvat credit under Rule 16(2) - decided against assessee. - F. No. 195/1104/2011-RA - 1257/2013-CX - Dated:- 16-9-2013 - Shri D.P. Singh, Joint Secretary Shri Narendra Dave, Chartered Accountant, for the Appellant. None, for the Respondent. ORDER This revision application is filed by M/s. SGS India Private Ltd., Mumbai against the Order-in-Appeal No. YDB/181/Thane City DN/2011, dated 22-7-2011 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I with respect to Order-in-Original passed by the Deputy Commissioner of Central Excise, Thane City Division, Thane, Mumbai. 2. Brief facts of the case are that the applicants during the period September, 2006 to December, 2008 in addition to its service business was engaged in the business of supplying Cyclic Hydrocarbon Chemical ( Marker ), a tracer for detecting adulteration in petroleum products. The applicants had entered into agreements with Oil Marketing Companies ( OMCs ) i.e. India Oil Corporation Ltd., Bharat Petroleum Corporation Ltd. and Hindustan Petroleum Corporation Ltd. for supply of Marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Marker from retail to bulk cannot be treated as a process of manufacture and accordingly the manner adopted by the applicants is not in conformity with the provisions of Rule 16 of the Central Excise Rules, 2002 and the Cenvat Credit Rules, 2004; c. Rebate under Rule 18 of Central Excise Rules, 2002, is allowed for duty paid on excisable goods. Therefore, in absence of involvement of manufacturing process filing rebate claim under the said rule is not correct as the exported goods are not excisable goods. d. Commercial invoice with respect to export of the said products has declared that the consignment is Re-export under Section 74 of Customs Act . Hence, the applicants should have opted the drawback channel available under Section 74 of the Customs Act, 1962 to avail benefit of Customs Duty element. After following due process of law, the adjudicating authority rejected the rebate claims. 3. Aggrieved with their Order-in-Original applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved with the impugned Orders-in-Appeal, the applicant has filed these Revision Applications under Section 35EE of Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken and consequent quantum of duty liability applicable on such removal. The mode of valuation and accordingly quantification of duty amount i.e. whether equivalent to Cenvat credit or more or less than that as applicable under Sections 3(2), 4 or 4A of the Central Excise Act, 1944, has been prescribed in order to cater to different circumstances as to the nature of processes that can be undertaken on the returned excisable goods. However, the returned duty paid goods which were originally manufactured does not cease to be excisable goods and continue to hold such status with or without the involvement of the further processes. The manner prescribed by Rule 16(2) of the Central Excise Rules, 2002 is just a valuation mechanism and mode of quantifying the duty liability as framers of law has envisaged both the situations of treatment of excisable goods returned to the factory. Thus, it is submitted that, that at the time of removal of the goods for the first time, the said goods were Excisable and accordingly applicable excise duty as duly discharged on the same by the applicants. Thus, under the circumstances, your goodself will appreciate that the applicants has actually deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting the rebate claim of duty actually paid under Rule 18 of Central Excise Rules, 2002 can be upheld, then the applicants would have adopted the alternative route available under Rule 19 of the Central Excise Rules, 2002 by clearing the goods without payment of duty and since the goods were otherwise also exempt the same would by no stretch of imagination cannot be questioned. However, in order to meet the conditions laid down by Rule 16(2) of the Central Excise Rules, 2002, the applicants paid the duty and adopted the course provided by Rule 18 of Central Excise Rules, 2002 instead of Rule 19 of the said Rules. Thus, in any case, denial of benefit on export does not arise as the applicants was, and continues to be of the firm bona fide belief that duty was required to be paid under Rule 16(2) of the Central Excise Rules, 2002 and benefit of rebate would available of such duty paid under Rule 18 of Central Excise Rules, 2002 when the goods were ultimately exported. The applicant relied upon various case laws in favour of their contention. 4.6 The applicants further conveys a respectful submission that, it is a settled position of law that once duty on the final product is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder rebate claim under Rule 18 of Central Excise Rules, 2002. Applicant had taken Cenvat credit of the duty paid of said goods at the time of receiving the goods in factory under Rule 16(1) of Central Excise Rules, 2002 and reversed the same amount under Rule 16(2) while clearing goods for export. The said reversal of Cenvat credit was not payment of duty and said goods were actually re-exported under Section 74 of Customs Act, 1962 and therefore the rebate claim was rejected by original authority. Commissioner (Appeals) has upheld the said order. Now, applicant has filed this revision application on the grounds stated in para (4) above. 8. Government notes that applicant has himself admitted that process of repacking from retail packs to bulk packs does not amount to manufacture since this activity is not covered under Chapter Note 10 of Chapter 29 of the Central Excise Tariff Act, 1985. But, he has claimed that the processed goods were cleared in terms of Rule 16(2) after reversal of Cenvat credit and therefore rebate of 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 subjecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
