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TMI Blog2020 (1) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is legally permitted to avail rebate on the export product to the extent of Central Excise Duty paid. The violation at the end of supplier of the goods is not within control of the appellant. The Department has not objected the payment of duty at the time of their clearance from the supplier s factory. In fact has suffer central excise duty at the declared value - The appellant has not taken anything other than the duty paid at the time of procurement of raw-material as cenvat credit, which after processing has been exported by a value addition at the end of appellant. Therefore, the appellant is rightly entitled to claim the rebate of the central excise duty paid at the time of their procurement from supplier/manufacturer - Also, customs department has not objected to the value declared by the appellant under the provisions of Customs Act at the time of export under Export Valuation Rule, 2007. The appellant is entitled for recredit/ refund of cenvat credit duty availed while exporting the goods through its 100% EOU and also the rebate as per declared violation for export made as merchant exporter - Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge excise duty on the exports. And accordingly, the appellant requested for allowing of red-credit of duty already paid by it at the time of export, which was denied by the Jurisdictional Superintendent vide letter dated 27.07.2009. The department was of the view that 100% EOU was fully exempt from payment of duty in view of Notification No. 24/2003-CE dated 31.03.2003 the appellant has deliberately paid the duty in order to avail the extra benefit by way of rebate under Rule 18 of the Central Excise Rules as alleged the valuation of the mouth freshener at the hand of supplier M/s Bika Distributor was inflated. Accordingly, the impugned show cause notice dated 30.01.2012 was issued to the appellant for denial of rebate claim by the appellant. However, the issue raised in the show cause notice the rebate of ₹ 39,64,003/- out of total rebate claim of ₹ 52,18,473/- filed by the appellant as merchant exporter was under Rule 18 of 2002 Rules was denied on the ground that the supplier has overvalued the mouth freshener meant for export falling the valuation under Section 4A of the Excise Act. 4. Learned Advocate has submitted that the appellant has undisputedly expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Return filed before the sale tax authorities. Accordingly, he is of the opinion that the impugned order is without any infirmity and required to be sustained in appeal. 6. We have considered the submissions made by the learned Advocate on behalf of the appellant and learned AR on behalf of the Revenue. 7. The issue to be decided in this case is twofold, first being eligibility of exporting the goods of their 100% Export Oriented Units on payment of duty and subsequently claiming rebate. It is on record that the appellant has withdrawn their refund claim and made a request in writing to the Departmental officer to permit the re-credit of cenvat credit availed for the discharge of central excise duty while exporting the goods. This request was turned down by the Department as is evident from the letter dated 27.07.2009. We have seen the various case laws submitted by the appellant and there is no dispute regarding viability of duty free export by 100% EOU in terms of Notification No. 24/2003. As the appellant has paid the duty, which ought to have not been paid, there is no reason that the refund thereof byway of recredit in cenvat account can be stopped by the Department. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id at the time of their procurement from supplier/manufacturer. We also find that customs department has not objected to the value declared by the appellant under the provisions of Customs Act at the time of export under Export Valuation Rule, 2007. Identical issue has come for consideration before us in case of Appeal No. 76343/2014 filed by one of the co-noticee. This appeal was decided vide Final Order No.F.O./76891/2019 dated 17.12.2019 wherein it is held as under; 5. We have considered the submissions made by learned Advocate on behalf of the Appellant and learned Departmental Representative on behalf of Revenue and also perused the appeal records. 6. The issue involved in this case is as to whether the Appellant has claimed any extra amount of rebate by over valuing their export product while exporting the same. The Appellant is merchant exporter, who has obtained the export goods from manufacturer/supplier at payment of duty as per the rate specified in ARE-1 and also in the excise invoice. It is the contention of the Department that the Appellant had manipulated the price of the exported goods by adopting higher assessable value in collusion with the supplier/ manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,16,81,336/- (Rupees One Crore Sixteen Lakh Eighty One Thousand Three Hundred Thirty Six only) and Education Cess & Secondary & Higher Educatin Cess rebate of ₹ 3,50,441/- (Rupees Three Lakh Fifty Thousand Four Hundred Forty One only) 21.3 It is on record that Ektara Export Pvt Ltd. had purchased Mouth Fresheners from the Manufacturing Unit of M/s Vishal Distributors during the period 2008-09 and 2009-10 under 54 (Fifty four) numbers of ARE-1 for export and the duty amount of the said exported product was subsequently claimed as rebate of Central Excise Duty under Rule 18 of Central Excise Rules, 2002. 21.4 I also find from the statement of the authorisd representative of the Noticee No. 7 Shri Anupam Jha, the authorised representative of the said Noticee No. 7 had no knowledge how and where from M/s Vishal Distributors, the Noticee No. 4 had procured the raw material for manufacture of Mouth Freshener which was ultimately sold to the Noticee No. 7 as well as: 21.5 That the Noticee No. 7 had directly dealt with M/s Vishal Distributors and payment was made to them by Cheque and RTG. 21.6 That the Noticee No. 7 had no business interest with the Noticee No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curement price. It was submitted before the Commissioner that the price is not inflated. The manufacturer/supplier has determined the assessable value for the purpose of, payment of central excise at higher rate than the assessable value declared for the purpose of a payment of commercial tax, which is none of their concern. The exports were affected by the Appellant through the various shipping bills supported by ARE-1 and commercial invoices which were duly checked and verified by the Central Excise Officers and also the Custom Officer at the time of their export. The manufacturer/ supplier has sold the goods to the Appellant by adopting the value declared under Section 4A of the Act in terms of Notification No. 49/2008/CE (NT) dated 24.12.2008 issued under Section 4A of the Excise Act. The export value of the subject exported goods were not objected by the officers of the Department at the time of export. As the Appellant has procured the goods which were valued under Section 4A of the Act it, could not have taken any other value for the purpose of export. The Department contention that in case of export the valuation under Section 4A is not permitted without any legal basis und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vert a part of the duty so paid into 'deposit of duty'. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit [2000 (38) RLT 179]." 8. Counsel appearing for the Revenue could not assail any of the findings recorded by the Tribunal. 9. That being the position, we agree with the view taken by the Tribunal and find no merit in these appeals which are dismissed leaving the parties to bear their own costs. 9. We also find that Hon'ble Supreme Court in case of Om Overseas Limited vs. Union of India [2003 (156) ELT 167 (SC)] has held that if there is any short payment, the benefit of rebate cannot be denied unless and until the same is by reason of fraud, collusion or wilful statement or suppression of fact. It has been not been brought on record in the impugned order that the Appellant has committed any fraud while obtaining the export goods from their supplier on payment of Central Excise duty in terms of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sustain the impugned judgment of the High Court or of the order passed by Joint Secretary to the Government of India in the revision application. The appeal is accordingly allowed. It is held that the appellants will be entitled to rebate under the Notification. There will be no order as to costs." 10. Further we find that the Department has failed to produce any evidence regarding export price declared by the Appellant is at lower price than the contemporaneous export price. This aspect has been considered by Hon'ble Supreme Court in case of Commissioner of Customs vs. Crown International Limited 2015 (325) ELT 462, wherein it is held as under; "Respondents are merchant exporters. They purchased CD-ROMs containing software from one manufacturer. Purchase price was ₹ 640/- per piece. Respondents had entered into a contract with foreign buyers for export of the CD ROMs at the rate of USD 18 per piece, which was equivalent to ₹ 761.40 at the prevailing exchange rate. Respondents realised the full export proceeds from the foreign buyers. 2. Based on the investigations, show cause notice was issued alleging that the value declared by respondents for export was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that export price declared by the appellant cannot be discarded. 11. During the relevant time the Appellant was acting as merchant export or and has determined at the assessable value in terms of Section 14 of the Customs Act and Export Valuation Rules, 2007. It is not accepted of the merchant exporter to question the price declared by the supplier. The Department has not produced any evidence regarding the fact that the Appellant and the supplier has colluded with each other to inflate the value of export consignment. 12. Rule 18 of the Central Excise Rules has been made to neutralise the duty incidence for export goods and ensure that the product remains expected in competitive foreign market. The purpose of said rule is to return the amount of duty that was paid by the exporter while exporting the goods outside India. Under the Circumstances, we are of the considered opinion that the Appellant has not overvalued the exported goods at their end and the impugned order is, therefore, not sustainable. The appellant is entitled for the rebate at the declared price for the export made by it. 13. The appeal is, accordingly, allowed." 9. In view of above, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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