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TMI Blog2015 (12) TMI 1644X X X X Extracts X X X X X X X X Extracts X X X X ..... the claims filed by the applicant for not giving break up of amounts claimed for the respective periods and the provisions under which claim made; non-submission of proper documents; and not following the procedure laid down under Para (ii) and Para (vi) of Notification No. 46/94-C.E. (N.T.), dated 22-9-1998 for the period 18-9-1998 to 15-10-1998 - Application revision rejected. - F. No. 195/284/2011-RA - 182/2015-CX - Dated:- 15-12-2015 - Ms. Rimjhim Prasad, Joint Secretary Ms. Reena Khair, Advocate, for the Assessee. Shri Raj Kumar, CCE, for the Department. ORDER This revision application is filed by M/s. Indian Oil Corporation Ltd. (MD), (hereinafter referred as applicant) against the Order-in-Appeal No. 10/Kol-III/2011, dated 22-1-2011 passed by Commissioner of Central Excise (Appeals-I), Kolkata, with respect to Order-in-Original No. 2/BST/Refund/Adj/ 07-08, dated 16-7-2007 passed by the Assistant Commissioner of Central Excise, Barasat Division, Kolkata-III Commissionerate. 2. Brief facts of the case is that the applicant filed two refund claims (i) for ₹ 3,70,019.53 submitted on 9-11-1998 covering the period from 18-9-1998 to 15-10-1998 conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals-I), Kolkata who rejected the same vide Order-in-Appeal No. 10/Kol-III/2011, dated 20-1-2011 on the ground that in the absence of documentary evidence the Assistant Commissioner could not have passed any other order than the impugned Order-in-Original. 4. Thus, the applicant filed this revision application under Section 35EE of Central Excise Act, 1944 before the Central Government on the following grounds : 4.1 That the Commissioner (Appeals) has summarily rejected all the valid and genuine contentions of the applicant by mere observation that no fresh evidence can be given recognizance at the appeal stage under Rule 5 of the Central Excise (Appeals) Rules, 2001. That they have submitted all documentary evidences substantiating the refund claim before the lower authority and no fresh evidence has been produced for the first time before the Commissioner (Appeal). Therefore, invocation of Rule 5 of the said Appeals Rule is totally misplaced and erroneous. That the Commissioner (Appeal) should have gone into the merit of the case and should have passed the order in favour of the them instead of mechanically rejecting their claim on the wrong ground that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reduced rate of duty has been passed on to the buyer and rejecting the refund claim on such ground of unjust enrichment are totally uncalled for and beyond the provision of the Central Excise Act. 4.7 That regarding the other grounds such as (i) failure to submit the revised application showing actual amount of claim and (ii) non-observance of procedure prescribed in Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 for rejecting the refund claim, the applicant submits that such grounds are totally insufficient because they submitted all supporting documents with the refund application to justify the refund claim. Further that the objection of non-observance of the procedure prescribed in the Notification No. 46/94 is also denied because such provisions are not relevant for the purpose of sanctioning the present refund claim. That they have produced all the documents and fulfilled all the conditions as provided in the said Notifications read with Rule 12 of the erstwhile Central Excise Rules, 1944 and relevant provisions of Section 11B of the said Act and there is no justification for rejecting the refund claim. 4.8 That they are legally entitled to the claim of refund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85,701/-), for neither submitting the required documents for refund to substantiate the claim and for not submitting the fresh refund application showing amount of refund claim under different Central Excise Section/Rules, separately. The applicant filed an appeal before Commissioner (Appeals) who upheld the impugned Order-in-Original. Aggrieved by the order of Commissioner (Appeals) the applicant has filed the revision application on grounds stated in Para 4. 8. Government observes that in the instant case the applicant has filed two applications for refund of duty. The refund for the period 1-4-1998 to 17-9-1998 for ₹ 72,39,069/- was submitted on 9-9-2002 consequent to the issue of Notification No. 24/2002-C.E. (N.T.), dated 15-7-2002 issued under Section 11(C) of Central Excise Act, 1944. The claim for the period 18-9-1998 to 15-10-1998 for ₹ 3,70,019.53 was made on 9-11-1998 consequent to the issue of Notification No. 39/98-C.E. (N.T.), dated 18-9-1998 amending the Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 issued under Rule 12 of the erstwhile Central Excise Rules, 1944 under which the Central Government has allowed rebate of central excise duty paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such goods were, or are, liable - (i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short-levied, in accordance with the said practice. (2) Where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be dealt with in accordance with the provisions of sub-section (2) of section 11B : Provided that the person claiming the refund of such duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five thousand rupees . 10. Government finds that the issue involved in the revision application for the period 1-4-1998 to 17-8-1998 relates to refund to duty under Section 11C ibid read with Section 11B paid in excess. This subject matter is not covered in the first provisio to sub-section (1) of Section 35 ibid and therefore, does not lie before the Central Government under Section 35EE. 11. Government now proceeds to take up the claim for the period 18-9-1998 to 15-10-1998 filed by the applicant on 9-11-1998 consequent to the issue of Notification No. 39/98-C.E. (N.T.), dated 18-9-1998 amending the Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 issued under Rule 12 of the erstwhile Central Excise Rules, 1944 under which the Central Government has allowed rebate of central excise duty paid on Aviation Turbine Fuel (ATF) exported as store for consumption on board an aircraft on foreign run (bound for Bhutan) in excess of ₹ 24.94 per KL at 15 C on fulfilment of certain conditions. 11.1 The salient points of the above notification are as under : 11.1.1 directs that rebate of duty paid on mineral oil products falling under Chapter 27 of the Schedule to the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact the applicant has not produced any evidence to the contrary. 12. 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. 12.1 It is a settled issue that benefit under a conditional notification cannot be extended in case of non-fulfillment of conditions and/or non-compliance of procedure prescribed therein as held by the Apex Court in the case of Government of India v. Indian Tobacco Association - 2005 (187) E.L.T. 162 (S.C.); Union of India v. Dharamendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.). Also it is settled that a notification has to be treated as a part of the statute and it should be read along with the Act as held by in the case of Collector of Central Excise v. Parle Exports (P) Ltd. - 1988 (38) E.L.T. 741 (S.C.) and Orient Weaving Mills Pvt. Ltd. v. Union of India - 1978 (2) E.L.T. (J311) (S.C.) (Constitution Bench). 12.2 Government observes that the point which needs to be emphasized is that when the applicant seeks rebate under Notification No. 46/1994-N.T., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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