TMI Blog2010 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... 07/Commr(A)/Raj, dated 30-8-07 passed by the Commissioner (Appeals) Central Excise Rajkot-I. 2. Brief facts of the case are that M/s. Evershine Polyplast Pvt. Ltd., Rajkot (hereinafter referred to as the applicant) is engaged in the manufacture of excisable goods viz. HDPE rope (Plastic Rope) P.P. Baler Twines, etc. falling under First Schedule to the Central Excise Tariff Act, 1985. 2.2 Facts of these cases are that the applicant filed different rebate claims under Rule 18 of the Central Excise Rules, 2002 with the jurisdictional Assistant Commissioner for export of the goods viz PP Baler Twines which were sanctioned by the Lower Authority vide his rebate sanction orders (as mentioned in column no. 06 of the table given below : TABLE Sl. No. Appeal File No. Order No. Date confirming demand Amount of demand confirmed as erroneous cash rebate (Rs.) Amount of Penalty imposed (Rs.) Rebate claim sanctioned earlier vide order No. D (1) (2) (3) (4) (5) (6) 01 V2/143/RAJ/2007 R/744/2007 30-5-07 1,19,731 10.000 R/129/2006 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Authority proposing recovery of erroneous rebate of the amount paid in cash which is in excess of 8% of the duty and penalty on the grounds that : (i) During scrutiny of the DR-1 filed by the applicant, it was noticed by the jurisdictional Range Supdt. that the tariff rate of the goods exported was prescribed @8% adv. w.e.f. 1-3-06, however the applicant continued to assess their goods Central Excise Duty @16% adv. and claimed this amount of Central Excise Duty as rebate on export. Thus, in order to encash the excess Cenvat Credit available, the applicant wrongly assessed their goods and thereby took advantage of excess rebate which was admissible upto 8%. (ii) The provision of Section 11D of the Central Excise Act, 1944 is applicable in these cases as the excess collection and deposition was earned back by way of rebate inasmuch as though the applicant had deposited/paid whole of the 16% duty collected from their buyer to the credit of Government against Central Excise Duty payable, but the same was claimed as rebate subsequently. Therefore, the excess payment of rebate in excess of 8% is recoverable from them under Section 11A read with Section 11D of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that, what we have paid was duty, irrespective excess or not. The refund Order itself accept that, we have paid excess duty, means what we have paid was duty. Secondly, there is no doubt that the goods were exported. Therefore, there is nothing but the rebate of duty paid (whether excess or whatsoever) shall be rebated. So there is nothing wrong done by the department. Section 11B Similarly, the provision of Section 11B, which is the enabling provision for granting refund/rebate, also allows the rebate of duty paid on the exported goods, without distinguishing the duty required to be paid and actually paid. Thus, in all such circumstances, the assessee has though paid the duty in excess, not debarred from getting the rebate of the said amount. The department has thus rightly sanctioned the refund claim. Thus the Commissioner (Appeals) erred in not considering this aspect. (B) Board Circular has Clarified the Issue The Board has also clarified this situation vide the Board s Circular No. 510/06/2000, dated 3-2-2000. While guiding in the similar issue, the Board has clarified that the rebate sanctioning authority should not examine the correctness of assessment bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that, in case of such excess duty the revenue has to Refund, adjust, credit such amount. Once the Refund has been granted of such excess duty paid, why to reverse the actions by issuing the Show Cause Notice. (iii) Rebate is available under other provisions also. The applicant is an exporter and not clearing the final products for the home consumption. Other provisions are also allowing the rebate of duty paid on the raw material or procuring the raw material without payment of duty. In such circumstances, it is proved that the rebate of duty paid on the final product is very well available to the applicant, than why the duty shall not be rebated if the applicant is paying excess duty? There is no case to allege that the applicant has extracted extra duty. The applicant has only paid from the Cenvat account, which is accumulated credit. (a) The applicant could have followed the procedure appended to Notification 43/2001-C.E. (N.T.) and procure the goods without payment of duty. In such circumstances the applicant need not have the burden of duty paid on raw material. (b) The applicant could have followed the procedure appended to Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed penalty as per Column No. 5 of the table. Commissioner (Appeals) upheld the order-in-original to set aside the penalty imposed. 8. Applicants have contended that department has not filed any appeal against the orders-in-original as mentioned in column No. 6 of the table which sanctioned the refund claim initially of the duty paid at the time of export of the goods. Department did not prefer any appeal against the said order. So the same has attained finality and further order issued are liable to be set aside. In this regard, it is observed that rebate claim was sanctioned initially vide orders-in-original as mentioned in column no. 6 of the table. Subsequently, Asstt. Commissioner issued show cause notices proposing to deny the excess rebate and to further recover the amount of excess rebate given. Asstt. Commissioner confirmed the demands vide order-in-original as mentioned in column no. 3 of the table which was upheld by Commissioner (Appeal). Applicant has contended that as per CBEC Circular No. 423/56/98-CX., dated 22-9-98 (F.No. 387/78/98-JC) issue of show cause notice for recovery of erroneously refund should follow the review of the order sanctioning refund. They hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realization of erroneously refunded duty. There is no pre-condition of reviewing the order under Section 35E before issuing show cause notice under Section 11A for recovery of erroneously refund. Hon ble Supreme Court has upheld the said judgment. Further CESTAT has followed the said judgment in the case of Bharat Box Factory Ltd. v. CCE, Ludhiana (supra) [2005 (183) E.L.T. 461 (Tri. - Del.)]. Therefore, Government finds no reasons to disagree with the findings of Commissioner (Appeals) in this matter. 9. So far as the question of Precedent (Para 4.1(c) above) is concerned, Government is of the opinion that each case is to be dealt with proceeded to and is to be decided on individual facts, merits and principals of proper justice so as to support and uphold the sanctity of constitutional validity of law as per statutory legal provisions. The Precedents are to be judiciously applied in such a way that the proceedings should not be directed towards and in support of any unconstitutional/invalid order. The guiding factor in such situations should be as per Hon ble Supreme Court in para 10 of the judgment in the case of Escorts Ltd. v. CCE, Delhi-II [2004 (173) E.L.T. 113 (S.C.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
