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TMI Blog2003 (1) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ,86,171/- -do- 2.2Briefly stated the facts of the case are that M/s. Benny Impex Pvt. Ltd., New Delhi, a merchant exporter (the respondent) have filed two rebate claims for the amount mentioned in sub-para 2.1 above under Rule 12(1)(b) of the Central Excise Rules, 1944 on the basis of 3+3 Nos. of refrigerated vans exported by them through AR-4 Nos. 2 & 3/BPL/99-2000 both dated 3-12-99 and AR-4 No. 4/BPL/2000-01, dated 14-11-2000. The applicant's claims for rebate were rejected on the ground that the applicant exported refrigerated vans which is also evident from the drawback claim filed under Tariff Heading 87.04. The applicant's claims for rebate were rejected for contravention of Rule 12(3) of the Central Excise Rules, 1944 r/w Rule 12( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, the party themselves have claimed rebate claim under Rule 12(1)(a) and not under Rule 12(1)(b). Further, the rebate claim under Rule 12(1)(b) is also not admissible to the party because the party has not fulfilled any of the conditions of the relevant Notification, i.e. Notification No. 42/94-C.E. (N.T.), dated 22-9-94. Moreover, under Notification 41/94-C.E. (N.T.), dated 22-9-94 the rebate is available for exporter whereas in case of rebate claim of duty paid on inputs under Rule 12(1)(b) in the relevant Notification word manufacturer has been used instead of exporter. (iii) That the respondent has not submitted any proof to prove that no Modvat credit has been availed of the duty paid on the said inputs. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, for reasons to be recorded in writing, allow, the whole or any part of the claim for such rebate, even if all or any of the conditions laid down in any notification issued under this rule have not been complied with". These conditions have been stipulated in Notification No. 41/94-NT, dated 22-9-94 and 42/94-NT, dated 22-9-94. (v) That excisable material referred to in Rule 12(3) ibid means goods which are subject to duty of excise under any law including the Central Excise Act, 1944 (See Explanation to Notification 41/94-NT, dated 22-9-94) and therefore Rule 12(3) means that no rebate of excise duty paid on export goods shall be allowed in respect of goods for which the exporter avails the central excise allocation as determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Govt. to deny the benefit of rebate of the Excise Duty paid altogether where the same element of duty of which rebate is claimed is not included in the Drawback rate prescribed in the All Industry Rates. (x) The appeals vide Annexure U and V were allowed vide Order-in-Appeal Nos. 1008-1009-C.E./DLH/2001. Following CEGAT decision in the case of Associated Dye Stuff Industries v. CCE, Ahmedabad - 2000 (117) E.L.T. 732 (T), it was held that it was only in those cases where the drawback was clearly relatable to the Excise duty claimed as credit, then the second proviso will act to bar such refund, otherwise not. (xi) That the respondent was seeking rebate of Excise duty paid on export goods, i.e. Truck Chassis, Truck Refrigerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for rebate under Rule 12(1)(a) of the Central Excise Rules. On this pleading Govt. would observe that the respondent cleared/removed 6 Tata LPT 909/36 Truck Chassis and 5 Nos. each of Truck refrigeration unit and insulated Truck body as per detail given below :- Sl. No. AR4 No. & Date Description of goods Amount of rebate claim Rs. 1. 02/BIPL/99-2000 Dated 3-12-1999 3 Tata Truck Chassis 1,52,560/- 2. 03/BIPL/99-2000 Dated 3-12-1999 2 Refrigeration Units 2 Insulated Truck Body 2,13,248/- 3. 04/BIPL/2000-01 Dated 14-11-2000 3 Tata Truck Chassis 1,86,171/- 4. 05/BIPL/2000-01 3 Refrigeration Units 3 Insulated Truck Body Under Bond As per facts on record the respondent vide their letters No. BIPL/2047/99, dated 3-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export through the AR4s No. 02, dated 3-12-99 and 04, dated 14-11-2001 (mentioned at Sl. Nos. 1 and 3 of sub-para 8.1 above), Govt. would observe that the respondents have procured these goods from the manufacturing premises of M/s. Tata Engineering and Locomotive Company Ltd., Jamshedpur on payment of appropriate Central Excise Duty as mentioned in the said AR 4s above. Those goods were removed for export to Bangladesh through above mentioned AR 4s and the same have been exported to Bangladesh as evident from the endorsement /certification made on the back of the said AR 4s. The payment of Central Excise Duty on the goods in question is not in dispute and therefore Govt. feels that respondents are eligible to claim of rebate amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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