9911796707
TMI Blog2014 (3) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1985. The unit is working under compounded Levy Scheme. The assessee filed 10 rebate claims for refund of Central Excise duty of Rs. 91,34,616/- paid by them on exports undertaken in the month of March 2010. The Deputy Commissioner, Customs, Central Excise and Service Tax, Nanded Division vide his Order-in-Original No. 01/Reb/DC/2011 (Reg.), Raigad, dated 20-4-2011 sanctioned rebate claim amounting to Rs. 91,34,616/- under Notification No. 32/2008-C.E. (N.T.), dated 28-8-2008 and Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of Central Excise Rules, 2002 read with Section 11B of Central Excise Act, 1944 and ordered to appropriate and adjust the above sanctioned amount against the interest liability of Rs. 17,77,292/- pending for the month of March, 2011 and duty default of Rs. 69,00,000/- for the month of November 2010 and interest liability of Rs. 3,73,750/- for the month of November, 2010 and the remaining amount of Rs. 83,574/- against duty default for the month of December, 2010 as a part amount. The Order-in-Original No. 01/RBT/DC/2011, dated 20-4-2011 passed by the Deputy Commissioner, Central Excise and Customs, Nanded Division sanctioning the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by the impugned Orders-in-Appeal w.r.t. allowing part rebate claim of Rs. 45,67,308/-, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 (i) In the impugned Order No. 198/2011-CX, dated 24-2-2011 the Joint Secretary has erred in holding that non following of the procedure for self removal and the conditions of Notification No. 19/2004 C.E. (N.T.), dated 6-9-2004 and circulars on the issue was procedural requirement and that such procedural deviations can be condoned. The conditions laid down in the Notifications No. 19/2004-C.E. (N.T.), dated 6-9-2004 and circulars on the issue are substantive conditions to ensure the nexus between the goods which are cleared from the factory/warehouse and the goods actually exported. Hence allowing the rebate by considering the violations to be procedural in nature will render the said substantial requirements redundant. Therefore, the impugned order passed by the Joint Secretary does not appear to be correct and legal and needs to be set aside. (ii) In this case the fact that the goods are not directly exported from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on an erroneous interpretation of facts. The date wise sequence of events is as under :- 17-3-2010 ARE-1 nos. 29 & 30 filed. 27-3-2010 actual date of shipment of goods. 31-1-2011 rebate claim filed for ARE-1 30/2009-10 7-3-2011 duty for March 2010 appropriated vide Order-in-Original No. 20/RBT/DC/2010-11, dated 7-3-2011 9-3-2011 rebate claim filed for ARE-1 29/2009-10 30-3-2011 interest on delayed payment for March 2010 appropriated vide Order-in-Original No. 21/RBT/DC/2010-11, dated 30-3-2011 20-4-2011 Order-in-Original No. 01/REB/AC/2011, dated 20-4-2011 passed allowing both the refund claims. The Commissioner (Appeals) has allowed the rebate claim filed on 9-3-2011 but has disallowed the rebate claim filed on 31-1-2011 on the ground that it was filed before the date of appropriation/payment of duty and was thus premature. However, the Commissioner (Appeals) failed to appreciate that on the date when the rebate claims were decided by the Deputy Commissioner the duty had already been appropriated and the goods on which rebate was claimed became duty paid goods. Hence the rebate claim in respect of ARE-1 30/2009-10 ought to have been allowed. 4.3 The Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese two orders were also excess duty collected by the department against export of goods, export of goods which was already lying with the department. The date of appropriation of these rebate claims towards duty payable for subsequent months is a mere technicality. Had these two orders been passed a little earlier, the present rebate claims of the applicant could not have been denied. However, rebate being a substantive benefit, is not deniable on technicalities. 5. The show cause notices were issued to the respondents under Section 129DD of Central Excise Act, 1944 to file their counter reply. The respondent has not filed any counter reply till date. 6. Personal hearing scheduled in this case on 19-9-2013 and 12-3-2014 was attended by Shri S.G. Pradhan, Superintendent (Tech.), Nanded and Shri V.D. Kulkarni, Superintendent (Review), Aurangabad respectively who reiterated the grounds of revision application. The respondent party has neither attended hearing on any of these dates nor sought any adjournment of personal hearing. 7. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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