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TMI Blog2018 (9) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has come up with the above writ petition challenging an order passed on an appeal, reversing the order of the Original Authority granting rebate on the duty of excise paid on the biscuits exported by the petitioner. 2. Heard Mr. S.Niranjan Reddy, learned Senior Counsel appearing for the petitioner and Mr. B.Narasimha Sarma, learned Standing Counsel for the respondents. 3. The petitioner is engaged in the manufacture of food products viz., biscuits and wafers, falling under Heading No.19 and confectionery falling under Chapter No.17 of the Schedule to the Central Excise Tariff Act, 1985. According to the petitioner, they cleared the subject goods for both domestic as well as export market. In respect of the goods cleared for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017, the 1st respondent allowed the appeals, on the ground that the goods manufactured by the petitioner were unconditionally exempted from payment of duty and that therefore the duty paid cannot be treated as duty paid under the Central Excise Act, 1944 so as to enable the petitioner to claim rebate under Rule 18 of the Central Excise Rules, 2002. Aggrieved by the said common order, the petitioner has come up with the above writ petition. 7. As against the impugned order, the petitioner has an alternative remedy of revision under Section 35EE of the Act. But according to the petitioner, the revision is to an officer of the level of Joint Secretary to Government. Since the 1st respondent viz., the Commissioner (Appeals) is also of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition in February 2017, they were actually disabled from filing a revision. Merely because the Government nominated officers of superior rank subsequently (in July, 2017), the petitioner cannot be driven to seek remedy before the Revisional Authority. 11. That takes us to the merits of the case. 12. The case of the petitioner is that they paid excise duty on goods cleared for the domestic market where per kg. retail sale price was more than INR 100 and that they paid excise duty on goods cleared for export on the basis of transaction value in terms of Section 4. Therefore, the petitioner availed rebate of duty. 13. But the stand of the Department is that the petitioner was not liable to discharge excise duty on the goods exported in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner is entitled to avail CENVAT Credit on goods cleared for export, valued in terms of Section 4 of the Central Excise Act, 1944 and that the Appellate Authority failed to follow an order of the CESTAT as well as his own order in another appeal. 16. We have carefully considered the above submissions. 17. The first question that arises for consideration is as to whether the exemption granted under Notification No.12/2012, was absolute and unconditional. If it is so then the order of the Appellate Commissioner is right. If not, it is incorrect. 18. The relevant portion of Notification No.12/2012 relating to Serial No.27, reads as follows: No. Chapter or heading or sub-heading or tariff item of the First Schedule Descripti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) proceeded on the basis that even admittedly, the value of the subjected goods was less than Rs. 100/- per kg. both when they were removed domestically and when they were exported. Therefore, the Commissioner (Appeals) came to the conclusion that the exemption was absolute. 21. At this juncture, it is to be noted that in terms of Section 5A(1A) of the Central Excise Act, 1944, if the exemption granted under Section 5A(1) is absolute, the manufacturer of such goods shall not pay duty of excise. This is why the Department has taken a stand that the petitioner ought not to have paid excise duty, when the exemption granted under Notification No.12/2012 was absolute. 22. To come to the conclusion that the exemption was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Aloys Pvt. Ltd. 2007 (218) ELT 174 (Raj.), a Division Bench of the Rajasthan High Court was concerned with a claim for rebate of duty, on the goods exported by the assessee. The Revenue raised a similar contention as they have raised now to the effect that the goods were exempt from payment of duty and that therefore the amount paid by the assessee cannot be treated as duty paid so as to enable the manufacturer to claim rebate. But the said contention of the Revenue was repelled by the Rajasthan High Court on the ground that even in cases where the manufacturer pays duty which is not leviable, he may be entitled to claim refund of the same. Therefore, the Department may not be right in retaining the duty paid by the petitioner. 26. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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