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TMI Blog2016 (7) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been fixed at the same time as that for menthol. Menthol and menthol crystals are two distinct products classifiable under distinct tariff headings viz 2906 and 3003 respectively as held in the impugned Order-in-Original. It is an uncontested fact that both items not only fall under different headings but the process of manufacture is also different as menthol is in liquid form and menthol crystals are in crystal form. The respondent was therefore, required to file different declaration and get separate approvals for the norms for each product sought to be exported for each product sought to be exported in terms of Notification No. 21/2004-CE(NT) dated 06.09.2004 read with para 2 of part V of Chapter 8 to CBEC Supplementary Instructions Manual. Para 2 of the said Notification clearly states that the correctness of the ratio of the input output ratio shall be verified before the commencement of the export of the said goods but in the present case, the respondent exported the goods before the verification of input output ratio as well as fixation of the input output norms. Thus they had failed to satisfy the condition of the Notification ibid. - Claim of rebate denied - Decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods in terms of said notification, which was subsequently granted by the Division office, Derabassi vide C.No. V (Misc) Rebate/ Not.21/04/DB/2/2009/2747 dated 19.08.2009 fixing therein input output norms as 1.250 kg DMO: 1.000 kg Menthol on the basis their declaration confirming there under mother liquor would not be processed/recycled for obtaining the menthol and would be cleared as De-Mentholized Oil Terpenelss. 2.4. The respondent mis-declared that the waste obtain would not be reprocessed/recycled further to obtain menthol which led to wrong fixation of the input output norm 1.250 kg DMO: 1.000 kg Menthol by the Division office which in effect was required to be fixed as 1:1 as the respondent was recycling/reprocessing the mother liquor and other wastes to obtain further Menthol. 2.5. Subsequently input output norms fixed earlier as 1.250 kg of De-terminate Mentha Oil to 1 kg of Menthol and 1.250 kg of De-terminated Mentha Oil to 1 kg of Menthol Crystals vide letter C.No.V (Misc) Rebate/Not.21/04/DB/2/2009/2747 dated 19.082009 for Menthol and vide letter C.No. V (Misc) Rebate/Not.21/04/DB/ 2/2009/408 dated 31.012011 for Menthol Crystals, have been revised to 1.000 kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent it grants rebate of duty paid on inputs ibid on the basis of input output norms as 1.250 1 fixed and permitted by the department under C.N0. 21/04/DB/2/2009/2747 dated 19.082009. 4.2. That Commissioner (Appeals) in his order has not considered the fact and circumstances which led to re-fixation of input output norms subsequently as 1:1 and grossly erred in simply setting aside the impugned orders passed by the adjudicating authority who in his orders has specifically mentioned that the norms were revised and re-fixed as 1.000 kg of de-terminated menthe oil to 1 kg menthol and 1.000 kg of de-terminated menthe oil to 1 kg of menthol crystals vide letter C.No. V (Misc)Rebate/ Notfn.21/04/DB/2/2009/1121 dated 0403.2011 and that the respondent had showed his malafide intention to claim more amounts of the rebates as in all the ARE -2s they have worked out the amounts of rebates by applying input output ratio as 1.250 kg of DMO for manufacture of 1.000 kg menthol crystal. That while filing the rebate claims they had claimed rebates by applying ratio of 1.000 kg DMO for manufacture of 1.000 kg of menthol crystal. 4.3. That the respondent suppressed the fact of recy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the extend it grants rebate of duty pain on inputs ibid on the basis of input output norms as fixed and permitted by the department under C.No.V (Misc)Rebate/NotfnE21/ 04/DB/2/2009/ dated 19.08.2009. 5.4. That the Revenue failed to understand the true nature and reason for the filing the same. That it was not the case that the party agreed to the ratio 1 kg menthol: 1 kg DMO. That the party in their letter dated 17.02.2011 has contended that as the revenue has already issued a Show Cause Notice on a different issue with regard to eligibility of rebate claim in respect of ARE-2 Nos 3/2009-10 dated 27.102009, 005/2009-10 dated 10.11.2009, 007/2009-10 dated 05.12.2009 and 10/2009-10 dated 19.01.2010 and the party to facilitate the speedy disposal of pending rebate claims due to delay in refund was also causing prejudice to their commercial interest, hence it was requested that the rebate claims may be immediately allowed as per input output ratio of 1 kg DMO : 1 kg menthol on a condition that the Show Cause Notice may be dropped. 5.5. That the respondent in the letter dated 17-02.2011 agreed to the input output norm as 1:1 only on the condition that the Show Cause Notices m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared the impugned goods viz Menthol Bold Crystals for export without seeking or getting permission of the Deputy Commissioner of Central Excise and also without fixation of input output ratio in relation thereto. Thus the rebate of duty paid on De-terminated Mentha Oil (input) and fiber drums paper based (packing material) used in the manufacture of these exported Menthol Crystals is not admissible as the respondent has not fulfilled the condition of getting the input output ratio fixed for the export products before manufacture and export of finished goods as required under the said Notification. Applicant department has contested the impugned Order-in-Appeal mainly on the ground that respondent failed to follow the prescribed procedure under Notification No. 21/2004-C.E. (N.T.) dated 06-092004 and also as much as the respondent mis-declared input-output ratio. 9. Government further, observes that the respondent has claimed that the input output ratio was approved by the jurisdictional Deputy Commissioner on 19.08.2009 and 31.01.2011. It is a fact on record that the two sheets to Annexure-24 dated 12.03.2009 submitted by the respondent for approval of input output norms indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they voluntarily opted for re-fixation of input output ratio for the speedy disposal of pending rebate claims as delay in refund was also causing prejudice to their commercial interest, which is not acceptable as it shows their malafide intention to claim more amounts of the rebates as in all the ARE -2s they have worked out the amounts of rebate by applying input output ratio as 1.250 kg of DMO for manufacture of 1.000 kg menthol crystal. But while filing the rebate claims they had claimed rebates by applying ratio of 1.000 kg 'DMO for manufacture of 1.000 kg of menthol crystal. 13. Government notes that nature of above requirement is both a statutory condition and mandatory in substance for removal of goods for exports under claim for rebate of duty either on the final goods exported or on the inputs contained therein. 13.1 'It is in this spirit and this background that Hon ble Supreme Court in case of Sharif-ud-Din, Abdul Gani (AIR 1980 SC 3403) has observed that distinction between required forms and other declarations of compulsory nature and/or simple technical nature is to be judiciously done. When non-compliance of said requirement leads to any specific/o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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