9911796707
TMI Blog2012 (12) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 grants unconditional exemption from whole of duty. The duty paid cannot be treated as duty paid under the provision of Central Excise Law. As such, the rebate of said amount is not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 since exported goods cannot be treated as duty paid goods. - impugned order-in-appeal is upheld to this extent - amount so paid by the applicant is to be treated as voluntary deposit with Government and same is to be refunded in the manner it was initially paid. In the instant case the same was paid from Cenvat credit account and hence government directs that the said amount may be allowed to be re-credited in their Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled appeal before Commissioner (Appeals) who upheld the impugned order-in-original and rejected the appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 The applicants submit that they have effected clearances for export during the month of February 2009 (14-2-2009 to 19-2-2009) on payment of duty under claim for rebate as per the provisions of Rule 18 of Central Excise Rules, 2002. The applicants have utilized the Cenvat credit of duty paid on the inputs which had been earned prior to the issuance of notification No. 59/2008-C.E., dated 7-12-2008. The Cenvat credit had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. - Order No. 317-320/2005, dated 31-8-2005 = 2006 (202) E.L.T. 153 (G.O.I.). iii. C.C.E., Ahmedabad-III v. Sucheta Metals Ltd. - reported in 2009 (246) E.L.T. 326 (Tri.-Ahmd.) iv. C.C.E., Jaipur v. Global Overseas - 2005 (192) E.L.T. 334. 5. Personal hearing was scheduled in this case on 8-10-2012. Nobody appeared for personal hearing either from the applicant side or from respondent's side. However, the applicants vide their letter dated 4-10-2012 requested to decide the case on merit without giving them any further date of personal hearing. 6. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 7. On perusal of records Government observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional rate of duty of 4% on these items, with the benefit of Cenvat credit. 2. The dispute was with regard to whether an assessee can avail the benefit of either of the above said two notifications whichever is beneficial to him or he is bound to avail the unconditional exemption under Notification No. 20/2004-C.E., as amended, during the period under dispute in terms of the provisions of Section 5A(1A) of the Central Excise Act, 1944. 3. The matter was examined in the Board. As a substantial question of law was involved, the matter was referred to the Law Ministry for its opinion. The Ministry of Law has opined that the language used in said Section 5A(1A) is unambiguous and principles of harmonious construction cannot be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold the impugned order-in-appeal to this extent. Applicants have pleaded that they are entitled for refund of the Cenvat credit availed either by cash or by re-credit in Cenvat account as no duty is payable on export goods. Government notes that this amount paid as duty is to be treated voluntary deposit with the Government and same cannot be retained without any authority of law. The said amount is required to be refunded in the manner it was paid as held by Hon'ble High Court of Rajasthan in the case of C.C.E. v. Suncity Alloys reported at 2007 (218) E.L.T. 174 (Raj. H.C.). Hon'ble High Court of Punjab & Haryana vide order, dated 11-9-2008 in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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