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TMI Blog2022 (2) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ilised for manufacturing the export goods. At that time the petitioner availed the CENVAT credit and later on claimed the rebate under rule 18. As is well known, the rules of 2002 recognise two regimes for equalising excise duty element on raw material used for export of course subject to the conditions specified by the Government of India. Under rule 18 the Central Government may by notification grant rebate on duty paid on excisable goods which are used for production of export goods. Under rule 19 a manufacturer can procure such goods without payment of duty on a condition that same would be used for manufacture of goods which would be exported. Both these rules 18 and 19 of the rules of 2002 concern payment of duty. Under Rule 18 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round. They have been heard together and are being disposed of by this common judgment. 2. D.B. Civil Writ Petition No.2835/2021 is treated as a lead case. Facts on record from the said case may be seen. The petitioner is a limited company and is engaged in the business of manufacturing of automobile tyres and tubes falling under Chapter 40 of First Schedule to the Central Excise Tariff Act, 1985. For the purpose of manufacturing tyres the petitioner would utilise indigenous as well as imported raw materials. In order to avail the benefits of duty free imports the petitioner had obtained advance authorisations and imported goods without payment of duty in terms of notification dated 11.09.2009. For certain locally procured inputs the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty. In the present case the petitioner paid the duty though the same was not payable. It was done deliberately to encash the CENVAT credit which may have been built up in the account. The advance licence scheme does not allow such mischief. 5. The petitioner preferred revision petition against the said appellate order. The revisional authority by the impugned order dated 08.01.2020 dismissed the revision petition making following observations:- 10. The applicant has paid an amount as central excise duty on the export goods from their cenvat account. The said amount does not assume the character of duty as defined under Rule 2 (e) of Central Excise Rules 2002 wherein 'duty' means the duty payable under Section 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case the petitioner opted for procedure under rule 18 of the rules of 2002 and made a rebate claim after payment of duty. Even if it is assumed that no duty was payable, the department cannot retain the petitioner's duty which has already been paid. She drew our attention to the decisions of various courts holding that payment of duty through CENVAT credit is as good as duty paid. The CENVAT rules make no distinction between a case where duty is paid through cash or through CENVAT credit adjustments. She therefore submitted that appellate and revisional authorities have committed serious error in rejecting the rebate claim. 7. Learned counsel appearing for department opposed the petitions contending that it is indisputable that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 18 there would be rebate of duty paid. Under rule 19 the duty which is otherwise payable is waived subject to condition of using raw material for manufacturing export goods. Neither of these rules relate to an amount which is deposited with the Government but which is not in the nature of duty. In other words if there is no duty element involved and amount is still paid, it does not partake the character of duty. It may amount to depositing a certain sum with the Government under erroneous belief. Had the petitioner deposited such sum believing it to be the duty payable, we would have still considered directing the Government of India to refund the same. The Government of India has no authority to retain the sum which is collected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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