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TMI Blog2021 (9) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... in the month of May, 2013 vide order dated 30.07.2013. Other ancillary reliefs have also been claimed. 2 The petitioner in Special Civil Application No.10461 of 2020 is a Partnership Firm, whereas in Special Civil Application No.10600 of 2020 the petitioner is the Private Limited Company incorporated under the Companies Act, 1956. Both the petitioners are engaged in manufacturing and export of various kinds of hand tools viz. spades, shovels, picks, hoes, etc. used in agriculture, horticulture and forestry. These goods manufactured by the petitioner are exempted from the Central Excise duty leviable thereon under Notification No.41/2001-CE (ET) dated 26.06.2001 [superseded vide Notification No.23/2004-CE dated 09.07.2004 and thereafter vide Notification No.05/2006-CE dated 01.03.2006 (superseded vide Notification No.12/2012-CE dated 17.03.2012) issued under sub-section (1) of Section 5A of the Central Excise Act, 1944. In both the petitions, there is no issue regarding the exemption of the whole of the Central Excise duty on the manufactured goods, which would be exported. The issue involved in the petitions relates to the scrap generated in the manufacture of the hand tools as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order was dismissed by respondent No.2 vide order dated 15.01.2020. Aggrieved by the same, the present petition has been filed. 6 A perusal of the order in original dated 30.07.2013 filed as Annexure-H relating to the 57 claims is based only on the ground that there was non-fulfillment of condition 4(c) of Notification No.21/2014-CE(NT) dated 06.09.2004. Other than the above ground, there is no other reason for rejection of the rebate claims. A perusal of the appellate order as also the revisional order have also held that on account of nonfulfillment of condition 4(c) of the notification dated 06.09.2004 the petitioner would not be entitled to the rebate claim and that the order in original passed by the adjudicating authority did not suffer from any infirmity. Therefore, the question to be considered in the present case would be as to whether there was any requirement of the fulfillment of the condition 4(c) of the notification dated 06.09.2004. If there was a requirement, then apparently no fault can be found with the orders under challenge, however, if clause 4(c) has no application or there was no requirement to fulfill that condition, then the petitioner may have a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise is also satisfied that there is no likelihood of evasion of duty, he may grant permission to the applicant for manufacture or processing and export of finished goods. (3) Procurement of material. - The manufacturer or processor shall obtain the materials to be utilised in the manufacture of the finished goods intended for export directly from the registered factory in which such goods are produced, accompanied by an invoice under rule 11 of the Central Excise Rules, 2002: Provided that the manufacturer or processor may procure materials from dealers registered for the purposes of the CENVAT Credit Rules, 2002 under invoices issued by such dealers. (4) Removal of materials or partially processed material for processing. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise may permit a manufacturer to remove the materials as such or after the said materials have been partially processed during the course of manufacture or processing of finished goods to a place outside the factory - (a) for the purposes of test, repairs, refining, reconditioning or carrying out any other operation necessary for the manufacture of the finished g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under clause 81 read with clause 83 of the Finance (No.2) Bill, 2004." 8 The forms, etc. are not reproduced as they are not relevant. The above notification refers to rebate of duty on excisable goods used in manufacture / processing of export goods - Procedure - Notification and it supersedes the earlier Notification No.41/2001-CE(NT) dated 26.06.2001. It is not in dispute that the final product manufactured by the petitioner is wholly exempted from Central Excise duty. The only issue is with regard to duty if any liable to be paid on the clearance of scrap. Paragraph 4 of the aforesaid notification dated 06.09.2004 refers to removal of materials or partially processed material for processing. It gives power to the Assistant Commissioner or the Deputy Commissioner of Central Excise to permit a manufacturer to remove the materials as such or after the said materials have been partially processed during the course of manufacture or process of finished goods to a place outside the factory. Then there are three contingencies as described in sub-paragraphs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, as submitted above, the rejection of the rebate claim on this ground is wholly unsustainable in law and on facts both. 11 It is further submitted by Shri Modh that respondent No.4 upon a specific query raised by the petitioner in 2005 itself had clarified that no excise duty would be payable on the clearance of scrap. He thus submitted that the respondents have wrongly placed reliance upon paragraph 4(c) of the Notification dated 06.09.2004. Thus, the reasoning that there was non-fulfillment of the condition provided in paragraph 4(c) of the notification dated 06.09.2004 for rejecting the rebate claims on the clearance of scrap, cannot be sustained and deserves to be quashed. 12 On the other hand, Shri Nikunt Raval, learned counsel for the respondent - Department has sought to argue that the Department has rightly rejected the rebate claims and that requirement of paragraph 4(c) of the notification dated 06.09.2004 being not fulfilled and being fully applicable in the case of the petitioner, the petitions deserve to be dismissed. Shri Raval, however, could not show us from either the order in original passed by the adjudicating authority or the appellate or the revisional aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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