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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 ..... ure of final products under Cenvat Credit Rules, 2004. The respondent in addition to other excisable goods also manufactures Menthol, Menthol Flakes and Menthol Crystals. These products namely Menthol, Menthol Flakes and Menthol Crystals are exempted unconditionally vide Notification No. 4/2006 dated 01.03.2006 as amended vide Notification No. 4/2008 dated 01103.2008. 2.2. The respondent manufactured (using duty paid inputs/packing material) and cleared consignment of Menthol Crystals [during the period from 27.10.2009 to 19.10.2010]; Menthol Flakes, Menthol Bold Crystals, Rectified Menthol Flakes Menthol 100% pure) [during the period from 30.01.2010 to 25.09.2010] and Menthol (Mentha Oil Rectified), Menthol Bold Crystals [during the period from 27.04.2010 to 31.102010] for export, and filed rebate claims of duty paid on inputs mentioned thereto under the procedure as envisaged under Notification No. 21/2004-CE (NT) dated 06.09.2004 read with Parat V of Chapter 8 of CBEC Supplementary Instructions Manuals on the basis of declaration dated 12.032009 in Annexure 24 filed with the adjudicating authority for fixing input output norms. 2.3. The respondent had earlier filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) who vide 245-247/CE/Appl/CHD-II/2011 dated 13.12.2011 allowed the appeal of the party and set aside the Order-in-Original with consequential relief. 4. Being aggrieved by the impugned Orders-In-Appeal, the department has filed this revision applications under Section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1. That the Commissioner (Appeals) has grossly erred in ignoring the fact that the party had themselves voluntarily agreed to vide their letter dated 17.0222011 that rebate be sanctioned as per norms kg DMO to kg menthol and accordingly the norms were 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.N0. dated 04.03.2011. That the respondent filed appeal no. 138/AP/CE/Ch-I/2011 (against Order-in-Original No. R-1136-1139/DB/2010 dated 18.06.2010) on 2403.2011, 215/AP/CE/Ch-11/2011 (against Order-in-original R-2207-2215/DB/2011 dated 30.032011) on 02.06.2011 and 265/AP/CE/Ch-11/2011 (against Order-in-original R-602-606/DB/2011 dated 13-06.2011) on 10.08.2011 with Commissioner (Appeals) much after the refixation of input outp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered wherein following had been submitted: 5.1 That the "Revision Application have been filed with the department under a mistake of facts because the department itself has granted permission under Notification No. 21/2004-CE(NT) dated 06209.2004 and has fixed input output norms for the final product namely Menthol as well as Menthol Crystals. 5.2. That the present case was constructed on the issue that the permission order dated 19.08.2009 did not cover menthol crystals for the input stage rebate. That neither in the Show Cause Notice nor in the Order-in-Original nor in Order-in Appeal there was any dispute with regard to input output ratio fixed vide permission order dated 09108.2009 thus the present revision application is not maintainable. 5.3. That the Revenue has taken a ground in its revision application that the Commissioner (Appeals) has grossly erred in ignoring the fact the party had themselves voluntarily agree to vide their letter dated 17.02.2011 that rebate be sanctioned as per the norms kg DMO to 1 kg of Menthol and 1 kg of DMO to 1 kg Menthol Crystals vide letter C.No. V (Misc)Rebate/notfn.21/04/DB/2/2009/1121 dated 04.032011. That the patty filed appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for amount Rs. 36,68,624/- wherein such fact of fixation of 1:1 is mentioned. That the adjudicating authority had not mentioned any such fact in rest of the two Orders-in-Original. 5.8. That the plea of revenue is incorrect in law. That the Show Cause Notices in the present case did not object to the quantum of ration fixed for input stage rebate claims. 5.9. The patty has relied on the following case laws: M/S Ispat Industries Ltd vs CCE 2012 (280) ELT 236 (Tri) CCE vs Carrier Aircon Ltd 2005 (184) ELT 113 (SC) 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that input stage rebate under Rule 18 filed by the respondent were rejected by the original authority on the grounds of failure to fulfill conditions of Notification No. 21/2004-CE(NT) dated 06.09.2004. The respondents appealed against the same before the Commissioner (Appeals) who allowed the appeal of the party and set aside the Orders-in-Original with consequential relief. Now the department has filed this Revision Application on grounds men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r crystals can be said to have 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. 11. Further, Government observes that as per the Notification No. 21/2004CE(NT) dated 06.09.2004, the declaration is required to be filed before commencement of the exports of goods involved. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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