9911796707
TMI Blog2013 (10) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) to be inadmissible in terms of Rule 18 of Central Excise Rules, 2002. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially. - Therefore, the original authority is directed to allow re-credit in Cenvat credit account of said amount. - Decided partly in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods for export on payment of duty. Further, Rule 17 of the Central Excise Rules, 2002 lays down that the Cenvat credit can be utilized by the 100% EOUs only in respect of their DTA clearances on payment of duty. Therefore, it appeared that the claimants have exported the goods from their 100% EOU on payment of duty, when actually no such duty was legally required to be paid and in contravention of the aforesaid provision of Central Excise Act, 1944 and Central Excise Rules, 2002. As such, the amount claimed to have been paid as Central Excise Duty/Education cess/SHE cess at the time of clearance, of the goods under the aforesaid four ARE-1s cannot be legally considered as Central Excise Duty/Education Cess/SHE cess paid under the enactments viz. Central Excise Act, 1944, Finance (No. 2) Act, 1994 and Finance Bill, 2007. Further, as per the provisions of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended, only Central Excise Duty/Education cess/SHE cess inter alia paid which are legally required to be paid under the enactments viz. Central Excise Act, 1944, Finance (No. 2) Act, 1944 and Finance Bill, 2007 are eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption contained in this notification in respect of duty of excise leviable under Section 3 of said Central Excise Act shall not apply to such goods if brought to any other place in India. 4.4 The applicant would like to again reiterate that Section 5A(1A) is applicable only in situation wherein absolute exemption wherein non-conditions are prescribed. However, the Not. No. 24/2003-C.E., dated 31-3-2003 does not grant absolute exemption since a condition is prescribed. The applicant would like to state that the exemption granted by the Not. No. 24/2003-C.E., dated 31-3-2003 is not applicable if EOU clears excisable goods to any other place in India and such clearance would be chargeable to excise duty. 4.5 The applicant would like to submit that since it is not an absolute exemption granted, hence Section 5A(1A) of the Central Excise Act, 1944 is not applicable and the applicant has the option to clear the goods for export on payment of duty. 4.6 The applicant would like to submit that ARE-1s have been submitted to the Range Supdt. and he has endorsed the same and has explicitly indicated that the goods can be exported on payment of duty. The copies of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby : (a) Exempts all excisable goods produced or manufactured in an export oriented undertaking from whole of duty of excise leviable thereon under Section 3 of Central Excise Act, 1944 (1 of 1944) and additional duty of excise leviable thereon under Section 3 of Additional Duty of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and additional duty of excise leviable thereon under Section 3 of Additional Duty of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) : Provided that the exemption contained in this Notification in respect of duty of excise leviable under Section 3 of said Central Excise Act shall not apply to such goods if brought to any other place in India;" 8.3 Sub-section (1A) of Section 5A of the Central Excise Act, 1944 stipulates as follows :- "(1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applicant. 9. In view of above position, rebate claims are not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004. However Government observes that duty without any authority of law is to be treated as voluntary deposit made by applicant with Government which is required to be returned in the manner in which it was paid. Hon'ble High Court of Punjab and Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & H) has held as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate." Hon'ble High Court of Punjab & Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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