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TMI Blog2024 (8) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4 to suggest that expenditure incurred by persons other than the manufacturer/ exporter shall not be included in the assessable value. A perusal of the above indicates that the price paid or payable by the buyer would become the transaction value notwithstanding the fact that the expenditure on such payment is borne by the assessee or somebody else - as the orders sanctioning rebate is not challenged, any demand under Section 11A cannot be sustained. Time Limitation - HELD THAT:- The appellants have taken a plea that the demand is time barred; Revenue has not put forth any evidence to show that the appellants have indulged in any omission or commission of suppression of fact, mis-statement, collusion etc. with intent to evade payment of duty other than making a bald statement to the effect that the assessee was under self-assessment regime and the fact of over-valuation was not detectable but for the investigation. It is found that the reasoning given by the Revenue is not acceptable as the Department while sanctioning rebates over a period of time had the opportunity to verify the claims of the appellant and to call for documents, if required - it is not open for them to invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te shall be given on the duty paid; the provisions are amply clear to provide that an export of goods will be eligible for rebate of the duty actually paid not with reference to the duty payable. He relies on the following cases: Omax Autos Limited- 2023 (9) TMI 452-CESTAT Chandigarh. Bharat Chemicals- 2004 (170) ELT 568 (Tri. Mum.) CCE Vs Bharat Chemicals 2015 (320) ELT 337 (Bom.) 4. Learned Counsel submits also that the Department has not challenged the orders sanctioning rebate; as on date, the said order is not set aside by any competent authority and as such, the order attained finality; therefore, no demand can be issued to recover the rebate under Section 11A without challenging the orders sanctioning rebate. He relies on the following cases: Omax Autos Limited Vs CCE, Delhi-III, 2023 (9) TMI 452 - CESTAT Chandigarh; Shree Nath Industries Vs. CCE, Jammu, 2018 (5) TMI 195 - CESTAT Chandigarh; Sudarshan Consolidated Pvt. Ltd. Vs. CCE ST, Jammu and Kashmir, 2019 (4) TMI 2121 - CESTAT Chandigarh CCE Vs Jellalpore Tea Estate, 2011 (3) TMI 11 - Guhati HighCourt 5. Learned Counsel submits, in addition that, the entire issue is revenue neutral; in case it is assumed that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants as well as their CFO and DGM. 8. Learned Authorized Representative further submits that the Central Excise Act, 1944 governs the levy of Excise Duty in the territory of India and does not extend to overseas and therefore, the contention of the appellants that the value of special packing done overseas is includable in the assessable value, just because the amount as shown in the purchase order is being received by them, is incorrect; the Board s Circulars and supplementary instructions and the decisions relied upon by the appellants are not applicable as all the instructions and decisions pertain to the activity conducted within the country and not overseas. He relies on the decision of Hon ble High Court of Punjab Haryana in the case of M/s Nahar Industrial Enterprises Ltd. 2009 (235) ELT 22 (P H) wherein it was held that it is not open for the appellants to pay a lower duty on domestic clearance and higher duty on export. 9. Heard both sides and perused the records of the case. Brief issue involved in the case that requires discussion is as to whether the appellants are eligible for rebate of that portion of the value which pertains to the special packing more so when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be erroneous, no demand can be sustained. We find that this Bench in the case of Omax Autos Ltd. (supra) held as follows: 10. We further find that as far as availability of rebate is concerned, the notification providing for rebate talks of duty paid rather than duty payable and as such a manufacturer - exporter has a choice to pay the duty as per the basic rate or after availing the partial exemption and rebate shall be granted on the duty paid . We find that this issue was settled by the Tribunal in the case of Ajanta Manufacturing Co. Ltd. (supra) which was upheld by the Hon ble Supreme Court (supra). Tribunal observed that : 3. We have considered the submissions made by both the sides. Both sides have cited several judgments in support of various claims made. However, as promised by the ld. Advocate, the appellants have submitted an affidavit by the Managing Director of the appellants wherein he has submitted that the Cenvat credit availed on inputs for one unit of the CFL amounts to Rs. 6.59 and excise duty at 8% works out to Rs. 9.85 per unit. He has also submitted that CFLs are sold to distributors and to the best of his knowledge none of the distributors are register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in its impugned order had held that having advised the assessee to reclassify the product under a different heading, holding the same ineligible for a partial exemption, the departmental officers should not have rejected the refund claim of the assessee. Further in view of the fact that Cenvat credit availed by the assessee was less than even of 8% duty liability, the assessee was entitled to a refund equivalent to the amount paid in cash after utilisation of Cenvat credit in full. The Tribunal remanded the matter to adjudicating authority for grant of refund accordingly. 12. We find that on the above two issues, the appellants are eligible for the rebate of the duty paid irrespective of the fact as to whether a partial exemption was applicable to the impugned goods. 13. The appellants further contended that the Department has not appealed against the rebate order and no higher authority has set aside the same; therefore, the rebate alleged to have been erroneously granted cannot be demanded by way of a show-cause notice issued under Section 11A of the Central Excise Act, 1944. We find that the Tribunal in the case of Shreenath Industries- 2018 (364) ELT 904 (Tri. Chd.) held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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