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TMI Blog2019 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... tification could not be applied to the assessee in the present case merely because the third party, viz., Merchant Exporter, availed the rebate of the export duty paid against the export made by it. The Board, in the series of Corrigendums and Clarifications has put the position of law beyond pale of doubt and therefore, the Revenue cannot be permitted to argue against their own Circulars and Clarifications. We wondered whether the appeal filed by the appellant/Revenue in the face of these Clarifications issued by the Board, itself could at all be entertained or not. But, since the learned counsel for the appellant/Revenue urged the point on the basis of Foreign Trade Policy, we heard the arguments of the learned counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er refining into white sugar by the assessee and was finally exported through the third party, viz., Merchant Exporter. The relevant portion of the order of the learned Tribunal in this regard is quoted below for reference:- ''.... 4 Heard both sides and have gone through the facts of the case. We find merit in the assertion of the Ld.Senior Advocate. We find that CBEC vide its Circular dated 22.01.2007, on the subject of export of excisable goods under Rule 18 of the Central Excise Rules, 2002, by using materials imported under advance licence, inter alia, had clarified as follows:- '' 2.3 In 2002, the CE Rules, 1944 were superseded by CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Corrigendum the DGCEI sought a clarification about its validity on the ground that in the subsequent Notification No.93/2004-Cus., issued under Advance Licence Scheme, the advance licence holder was debarred from availing the rebate facility under Rule 18 under which, as mentioned above, an exporter could avail of the rebate of excise duty paid on the materials used in the manufacture of export products as also the terminal excise duty paid on the export products. Subsequently, after examination of the issue, a corrigendum was issued to Notification 93/2004-Cus., vide Public Notice 2/2005 dated 17.05.2005 in order to restore the status quo ante, i.e., the licence holder was debarred from availing of rebate of duty paid on materials used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel assisted by Mr.Muthu Venkataraman, learned counsel for the respondent/assessee supported the impugned order and submitted that the Board itself realised in a series of Corrigendums and Clarifications issued, to ameliorate condition No.[v] in the Notification No.93/2004-Cus. dated 10.09.2004, vide Corrigendum dated 17.05.2005, and has later on, explained by the Circular dated 22.01.2007 and submitted that the Advance License for import of raw sugar in question was issued after the date of Corrigendum dated 17.05.2005 issued by the Board itself and therefore, in the said Corrigendum, since the rebate of duty paid on materials used in the manufacture of the resultant product would not amount to violation of Rule 18 and therefore, exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entertained or not. But, since the learned counsel for the appellant/Revenue urged the point on the basis of Foreign Trade Policy, we heard the arguments of the learned counsel for the appellant/Revenue on merits also. But, we find to our dismay that such a point has not even been raised by the appellant/Revenue before the Tribunal or at any point of time except before us for the first time. That point too, on its own, does not advance the case of the appellant/Revenue as Paragraph 4.1.3 of the Foreign Trade Policy relied upon by the learned counsel for the appellant/Revenue applies to Advance Authorisation Scheme which is different from the Advance License issued in favour of the assessee/respondent in the present case, against which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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