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TMI Blog2012 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant’s substantial benefits of impugned rebates claim as there is no dispute about compliance of other condition of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided in favour of assessee. - F. No. 195/18/11-RA - Order No. 1492/2012-CX - Dated:- 12-10-2012 - Shri D.P. Singh, Joint Secretary Shri R.K. Sharma, Sr. Counsel, for the Assessee. None, for the Department. ORDER This revision application is filed by M/s. Venu International, Mumbai against the Order-in-Appeal No. YDB/729/RGD/2010, dated 29-10-2010 passed by Commissioner of Central Excise (Appeals), Mumbai Zone-II with respect to the respective Order-in-Original passed by the Asst. Commissioner of Rebate, Central Excise, Raigad, Office of the Maritime Commissioner. 2. Brief facts of the case are that the applicant as manufacturer exporter has filed five rebate claims amounting to ₹ 9,07,942/-. The goods exported were woven fabrics of Chapter Heading 54 for which an exemption Notification No. 30/2004-C.E., dated 9-7-2004 existed for cases of non-availment of Cenvat Credit on inputs. The original authority rejected the rebate claims on the ground that since accumulated Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been availed, hence notification not applies. Thus condition in the notification explicitly mandates that the said notification is not applicable if one has taken credit of duty against the inputs. The Entries in the RG 23 Register, Five ARE-1s, Jurisdictional Range Superintendent s Letter, dated 21-8-2009 and Para 3 of Department s Show Cause Notice 4-9-2009 proved beyond doubt that applicant has taken credit against duty-paid input used in the exported goods. 4.4 Applicant submits that the Show Cause Notice proposing rejection of rebates amounting to ₹ 9,07,942/-. The charge alleged in the Show Cause Notice at Para 4 that we have contravened the provision of Notification No. 30/2004-C.E., dated 9-7-2004 and in Para 5 alleges that duty-paid by us is not duty of Central Excise. Show Cause Notice also says at Para 3 that Jurisdictional Range Superintendent by Letter dated 21-8-2009 has confirmed that we have taken credit against inputs Chemicals and Dyes. There is no allegation in the Show Cause Notice that we opted for Notification No. 30/2004-C.E., dated 9-7-2004 or of Section 5(a) of the Central Excise Act, 1944. It only alleges that we contravened the provisions of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input Chemicals and Dyes only. Further the Adjudicating Authority at Para 10 in the impugned order held the accumulated credit stands lapsed on 9-7-2004. There is no issue of credit getting lapsed. The assumption and presumption by the Adjudicating Authority at Para 10 is incorrect. The Hon ble High Court of Gujarat held in CCE Cus., Surat-I v. Annapurna Industries P. Ltd. - 2010 (255) E.L.T. 197 (Guj.) that in absence of any Provision, Notification or Circular, the credit accumulated cannot lapse. Therefore, the finding of Adjudicating Authority at Para 7 in the impugned order has no substance. 4.8 Applicant submits that we have paid excise duty on input Chemicals and Dyes to the office of Excise Department as per statutory provisions of the law. Applicant submits that the office of the Excise Department accepted the same. Applicant submits that we have claimed Rebate against duty paid on Chemicals and Dyes which was used in the manufacture of exported goods. The Column 8 in the five ARE-1s filed with department clearly state that 8% Central Excise Duty and 2% of Education Cess was paid through Cenvat. Department accepted the revenue as duty which was paid by us. Applicant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r where submissions made not answered. The Hon ble High Court of Bombay in the case of Rostam Parvaresh v. U.O.I. - 2010 (259) E.L.T. 342 (Bom.) has held at Para 6 that submissions made by the applicant before the revision authority were not considered. Non-consideration of the contention demonstrates not only non-application of mind but omission to consider relevant submission, which results in miscarriage of justice. The Hon ble High Court of Bombay in Nagreeka Foils Ltd. v. CCE Cus. Vapi - 2008 (227) E.L.T. 348 (Bom.) = 2009 (13) S.T.R. 101 (Bom.), Stanlek Engineering Pvt. Ltd. v. CCE, Mumbai-I, - 2008 (229) E.L.T. 61 = 2009 (16) S.T.R. 682 (Bom.) held the same view. The Hon ble Supreme Court has held this view in the case of Coats Viyella India Ltd. v. CCE - 2004 (173) E.L.T. 229 (S.C.). 4.12 Further on 8-8-2012 vide additional submission it was stated that Notification No. 30/2004-C.E., dated 9-7-2004 stipulates that if credit on inputs has not been taken then the final product is exempted (also stated in para 5 of the Order-in-Original). The applicants has produced documentary evidences as to availment of credits on inputs such as dyes, chemicals, etc. which is not dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemicals would be sufficient for payment of such duty amounts. 8. In situation of factual details as above, when both the applicant exporter and respondent department are relying on same set of rules/regulations as provided under the statute but are interpreting the same differently then, Government thinks it proper to peruse the applicable provisions of law and applicability thereof as per natural and genuine meanings thereof. 9. Government notes that Notification No. 30/2004-C.E., dated 9-7-2004 mandates as under :- Textile Textile Articles - Effective rate of duty to specified goods of chapter 50 to 63. ------------ ------------ ----- exempts the excisable goods ----- ----- from whole of Excise duty leviable hereon ----- Provided that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the Cenvat Credit Rules, 2002. When the above condition of non-availment of Cenvat credit on inputs is read with the factual details/report of jurisdictional superintendent dated 21-8-2009, then it is become clear that the applicant did not qualify the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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