9911796707
TMI Blog2013 (2) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Area, opposite ESIS Hospital, Andheri (E) , Mumbai-93, (hereinafter referred to as the claimant) had filed rebate claims amounting to Rs. 1,29,06,035/-. Assistant Commissioner (Rebate), Central Excise, Raigad, sanctioned the said claim vide order-in-original No. 166/09-10, dated 28-4-2010. The department preferred the appeal against the said order-in-original dated 28-4-2010 on the grounds that as per the Notification No. 4/2009-C.E., dated 24-2-2009, the effective rate of Central Excise Duty was reduced from 10% to 8%. It has been observed that the manufacturer had cleared the exported goods vide ARE-1 No. 01, dated 24-2-2009 by paying the Central Excise duty @ 10% instead of 8% and rebate had been sanctioned as claimed. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the duty at the earlier rate of 10%. 3.2 The Commissioner (Appeals) has erred in its findings inasmuch as : (i) The Commissioner (Appeals) accepted the ignorance on part of the assessee and jurisdictional excise officer. (ii) The money extra paid on account of reduction of rate of duty does not to be treated as duty but the "amount" and it is required to be transferred to Consumer Welfare Fund under Section 11D of the Central Excise Act, 1944. (iii) The Commissioner (Appeals) overlooked the Apex Court judgment which was cited by Commissioner (Appeals) himself. (iv) The order-in-appeal is per incuriam inasmuch as it does not considers the explanation (1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the correctness of the rebate claim. 3.6 From the above, it seems that the rebate sanctioning authority should examine and satisfy himself that the rebate claim is in order in all respect and if it is not in order, he can restrict the claim amount. 3.7 Further paragraph 8.4 of C.B.E. & C. Central Excise Manual reads as followed - "8.4 - After satisfying himself that the goods cleared for export under the relevant ARE-1, applications mentioned in the claim were actually exported, as evidence from the original and duplicate copy of ARE-1 duly certified by Customs, and that the goods are of 'duty paid' character as certified on the triplicate copy of ARE-1 received from the jurisdictional Superintendent of Central Excise (Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required to be paid @ 8% and not at 10% on 24-2-2009 and therefore excess payment of duty of Rs. 3,47,048/- cannot be rebated. 8. Government notes that Commissioner (Appeals) has accepted that notification changing effective rate of duty takes effect from the date of publication of notification in Official Gazette as held in Hon'ble Supreme Court decision in the case of UOI v. Ganesh Das Bhojraj - 2000 (116) E.L.T. 431 (S.C.) but allowed the rebate of duty paid at 10% accepting the ignorance on the part of assessee and on the basis of C.B.E. & C. Circular No. 510/06/2000-CX, dated 3-2-2000. So, it is a settled legal position that on 24-2-2009, duty was payable on impugned goods @ 8% in terms of Notifn. No. 4/2009-C.E., dated 24-2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is issued specifically with respect to sanctioning rebate claim of duty paid on exported goods and therefore assessee has to pay the effective rate of duty and claim rebate accordingly. 8.2 Government also observes that the C.B.E. & C. Circular No. 510/06/2000-CX, dated 3-2-2000 has also been discussed and relied upon by Commissioner (Appeals) as well as respondents. In this regard, the Government observes that as per para 3(b)(ii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate sanctioning authority has to satisfy himself that rebate claim is in order before sanctioning the same. If the claim is in order he shall sanction the rebate either in whole or in part. The said para 3(b)(ii) is reproduced below :- "3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, the provision of Notifn. No. 19/2004-C.E. (N.T.), dated 6-9-2004 will prevail over the C.B.E. & C. Circular dated 3-2-2000. Further, the notification issued under Rule 18 of Central Excise Rules, 2002, prescribes the conditions, limitations and procedure to be followed for claiming as well as sanctioning rebate claims of duty paid on exported goods. The satisfaction of rebate sanctioning authority requires that rebate claim as per the relevant statutory provisions is to be in order. He does not have the mandate to sanction claim of obviously excess paid duty. Therefore, the circular of 2000 as relied upon by respondents cannot supersede the provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 8.3 In view of above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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