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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 ..... c) of the notification dated 06.09.2004. Therefore, the impugned orders are vitiated in law and cannot be sustained. Petition allowed - decided in favor of petitioner. - R/Special Civil Application No. 10600 Of 2020 With Civil Application (For Stay) No. 1 Of 2021, In R/Special Civil Application No. 10600 Of 2020 With R/Special Civil Application No. 10461 Of 2020, Civil Application (For Stay) No. 1 Of 2021 - - - Dated:- 1-7-2021 - In R/Special Civil Application No. 10461 Of 2020 Honourable The Chief Justice Mr. Justice Vikram Nath And Honourable Mr. Justice Biren Vaishnav For the Petitioner(s) : Mr Hardik P Modh For the Respondent(s) : Mr Nikunt Raval ORAL ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH) 1 These two petitions have been filed under Article 226 of the Constitution of India praying for a writ of certiorari for quashing the order passed by respondent No.2 Principal Commissioner of Revisonary Authority Ex-Officio Additional Secretary to the Government of India dated 15.01.2020 upholding the order in appeal dated 05.12.2013 confirming the recovery of rebate claims already sanctioned, in effect rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported during the period from 2008-09 up to 2012-13 under Rule 18 of the Central Excise Rules, 2002 (for short, 2002 Rules) read with Notification No.21/2004-CE(NT) dated 06.09.2004 and such rebate claims were sanctioned by the respondent No.4 by various orders in original passed from time to time. Although a show cause notice dated 10.05.2013 was issued proposing to cancel the sanction of the 335 rebate claims but the same was later resolved and sorted out. 5 In the meantime, the petitioner had exported the finished goods and had filed 57 rebate claims for the period from May, 2013 in respect of Central Excise duty paid on the raw-materials used in the manufacture of exported goods under the provisions of Rule 18 of the 2002 Rules read with notification dated 06.09.2004. These rebate claims were rejected vide order in original dated 30.07.2013 on the premise that the petitioner failed to fulfill the condition No.4(c) of the Notification No.21/2004-CE inasmuch as the waste / scrap had not been cleared on the payment of duty. The order in original dated 30.07.2013 and 21.08.2013 were challenged by way of appeals before the Commissioner (Appeals), which came to be dismissed vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhutan, be paid subject to the conditions and the procedure specified hereinafter: - (1) Filing of declaration. - The manufacturer or processor shall file a declaration with the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture describing the finished goods proposed to be manufactured or processed along with their rate of duty leviable and manufacturing/processing formula with particular reference to quantity or proportion in which the materials are actually used as well as the quality. The declaration shall also contain the tariff classification, rate of duty paid or payable on the materials so used, both in words and figures, in relation to the finished goods to be exported. (2) Verification of Input-output ratio. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise shall verify the correctness of the ratio of input and output mentioned in the declaration filed before commencement of export of such goods, if necessary, by calling for samples of finished goods or by inspecting such goods in the factory of manufacture or process. If, after su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in the Annexure to this notification and the procedures specified in Ministry of Finance (Department of Revenue) notification No.19/2004-Central Excise (N.T.), dated the 6th September, 2004 or in notification No. 42/2001-Central Excise (N.T.), dated the 26th June, 2001 shall be followed. (6) Presentation of claim of rebate. - The claim for rebate of duty paid on materials used in the manufacture or processing of goods shall be lodged only with the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise having jurisdiction of the place approved for manufacture or processing of such export goods. Explanation: - duty means for the purposes of this notification, duties of excise collected under the following enactment, namely: - (a) the Central Excise Act, 1944 (1 of 1944); (b) the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978); (d) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by Section 169 of the Finance Act, 2003 (32 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 comes into play. 9 According to Shri Modh, learned counsel for the petitioner, at no stage of the manufacturing or the processing of the goods either the raw-materials in its original form or partially processed form has been moved outside the factory. Whatever processing is followed in the manufacture of finished goods is done within the factory itself. At no stage as the rawmaterials or the partially processed goods have been moved out, as such paragraph 4 will have no application at all. It is also submitted that there is no finding recorded either by the adjudicating authority, appellate authority or the revisional authority that the material as such or after the said material had been partially processed had been moved out to a place outside the factory in the course of manufacturing of the finished goods. In the absence of any such finding and as the specific case of the petitioner is that the material as such or the partially processed material was ever removed from the factory premises, the impugned orders stand vitiated as they have applied a provision, which is not applicable at all. 10 It is also submitted by Shri Modh that as such there would be no question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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