TMI Blog2010 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... These revision applications have been filed by the Commissioner Central Excise, Belapur against the orders-in-appeal No. SRK/413/ Bel/2008 dated 3-7-08 and YDB/119/Bel/2010 dated 26-2-10 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone-II with respect to orders-in-original No. R-267/07-08 dated 17-12-07 and R-340/07-08 dated 24-3-08 respectively. 2. As the issue involved in both the cases is same, these are being disposed off by this common order. 2. Brief facts of the cases are that M/s. A.V. Industries, the assessee, is engaged in the manufacture of excisable goods viz M.V. Parts falling under Chapter sub-heading 8708 99 00 of Central Excise Tariff Act, 1985. 2.2 The assessee filed two rebate claims on 30-10-07 against ARE-2 Nos. 02/07-08, dated 27-8-07 and ARE-2 No. 03/07-08, dated 28-8-07 to claim rebate of duty amounting to Rs. 3,79,895.31 and eight rebate claims on 8-1-08 against ARE-2 No. 01/07-08, dated 20-7-07, 4/7-08, dated 17-9-07, 5/7-08, dated 18-9-07, 6/7-08, dated 28-9-07, 7/7-08 dated 28-9-07, 8/7-08, dated 29-7-07, 9/7-08, dated 29-10-07 and 10/7-08, dated 19-11-07 totally amounting to Rs. 12,88,704/10 of Central Excise duty and two rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the claimant are incorrect. The claimant in their defense has submitted that once duty is paid and debited the same has to be rebate and have relied upon certain case laws. In the present case the claimant is not discharging any duty at the time of export clearance nor is there any assessment of the duty payment at the time of export clearance. The claimant has lost sight of the situation and have wrongly relied upon the judgment as the claimant is claiming rebate of the duty suffered on the inputs and is not claiming rebate of the duty paid if any by the claimant, at the time of export clearance. The payment of duty by the manufacturer i.e. M/s. Padmavati Engineers (India) Ratanpur and the export of the manufactured product by M/s. A.V. Industries are not in doubt. However, the rebate claims submitted by the claimant is not correct. The claimant is seeking rebate of duty suffered on the inputs used in the manufacture of export product. The situation here is that the product which the claimant claims to be as an input is infact a fully manufactured product. Hence, the claimant s claim under ARE-2 is totally incorrect. As the claim itself is incorrect, the question of sanctionin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not admissible. The admitted position is that the material was exported after changing the packing. Therefore, it was not open to the Assistant Commissioner to hold that rebate was not admissible as no further manufacturing activity had been carried out by the applicants. The said finding was contrary to CBEC s Instructions contained in Para 13 of Chapter 8 Part-V mentioned above and has to be set aside. Accordingly, the impugned orders were set aside. 3. Being aggrieved by these orders-in-appeal, the applicant Commissioner has filed these Revision Applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 The order-in-appeal dated 26-2-10 SRK/413/Bel/2008 dated 3-7-08 passed by the Commissioner (Appeals) in respect of M/s. A.V. Industries, do not appear to be correct, legal and proper due to the reasons enumerated below : Notification No. 21/2004 reads as follows : rebate of whole of duty paid on excisable goods (hereinafter referred to as materials ) used in the manufacture or processing of export goods shall on their exportation out of India, any country except Nepal and Bhutan be paid subject to the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivity/processes undertaken by M/s. A.V. Industries does not amount to manufacture, still rebate would be admissible in view of para 1.2 and 1.3 of the Part-V of Chapter 8 of the CBEC s Excise Manual of Supplementary Instructions. 4.2 Although the process of testing, assembling and re-packing undertaken by M/s. A.V. Industries does not amount to manufacture and duty was not leviable on the same but paid by M/s. A.V., Revenue is not entitled to retain the same as the goods have been exported undisputedly and hence, the same has to be refunded, based on the following judgments : (i) Jayant Oil Mills - 2009 (235) E.L.T. 223 (Guj.) (ii) Suncity Alloys Pvt. Ltd. - 2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.) (iii) Punjab Stainless Steel Ind. - 2008 (226) E.L.T. 587 (T) (iv) Norris Medicines Ltd. - 2003 (56) RLT 353 (T) (v) Medispan Ltd. - 2004 (112) ECR 664 (T) = 2004 (178) E.L.T. 848 (Tribunal) Once goods have been exported on payment of duty, rebate is not deniable, based on the following judgment : (i) Alpha Garments - 1996 (86) E.L.T. 600 (T) (ii) Indo Euro Textiles Pvt. Ltd. - 1998 (97) E.L.T. 550 (GOI) (iii) Birla VXL Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter 8 of CBEC s Excise Manual of Supplementary Instructions read with Rule 18 of Central Excise Rules, 2002. Hence, although the re-packing of motor parts by the exporters does not amount to manufacture, rebate of duty paid on goods exported cannot be denied. The Noticees submit that, in fact, Commissioner (Appeals) while setting aside the orders-in-original rejecting the exporter s rebate claim, followed the para 1.3 of Part VI of Chapter 7 of the CBEC s Excise Manual of Supplementary Instructions and held that it is not necessary that goods procured under Notification No. 21/2004-C.E. (N.T.) should be subjected to a process amounting to manufacture and that hence, rebate claim cannot be denied on this ground. 4.5 The exporters say that, once duty paid at the time of clearance of goods exported by showing duty payable in Central Excise invoices and raising debits in Cenvat/PLA has been accepted by Department as duty, denying the rebate would be incorrect and would not have any basis. It is also a settled position of law that, once duty on the final product has been accepted, neither credit availed on the inputs is deniable nor rebate of duty paid from Cenvat Account is de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the department is that the respondent did not carry out any process of manufacture of the inputs received and exported as such, so Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 is not applicable in their case, hence no rebate on the inputs is available to them, whereas the respondent has submitted that they carry out testing and re-packing etc. before exporting the inputs received by them. In this connection, let us peruse Rule 18 of the Central Excise Rules, 2002 which reads as under : Rule 18 : Where any goods are exported, the Central Government may, by notification grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedures, as may be specified in the Notification. 9. From above, it is seen that the terms used is material not input. Moreover, the material is to be used in the manufacture of processing of the goods. The process of processing of the goods may not amount to manufacture in terms of Section 2(f) of the Central Excise Act, 1944. The process of testing/re-packing etc. definitely ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
