TMI Blog2013 (6) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... terests of the respondent Department. - Decided in favor of assessee. - W.P.No.5667 of 2012 and M.P.No.1 of 2012 - - - Dated:- 30-11-2012 - M. Jaichandren,JJ. For the Petitioner : Mr. K. S. Venkatagiri for M/s. Lakshmi Kumaran Sridharan For the Respondents : Mr. P. Mahadevan (SCGSC) ORDER Heard the learned counsel appearing for the petitioner, as well as the learned counsel appearing on behalf of the respondents 1, 2 and 4. 2. It has been stated that the petitioner is a 100% Export Oriented Unit, engaged in the manuacture of export of bulk drugs and formulations. The petitioner is a registered manufacturer and it is liable to pay Excise Duty on the bulk drugs and formulations manufactured by it, unless such payment is specifically exempted. 3. It has been further stated that the Government of India has announced various exemptions from the payment of Excise and Customs Duty payable on the raw materials and consumables used in the manufacture of export products, by a 100% Export Oriented Unit. Concessional rate of duty is also granted for the sale of the finished products in the Domestic Tariff Area, on fulfillment of the export obligation. While so, the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products exported, by utilizing the credit and claim rebate of the duty so paid. 6. It has been further stated that the sales made by the petitioner, which is a 100% Export Oriented Unit, are predominantly by way of exports. As the petitioner was required to procure the input services on payment of Service Tax it had been compelled to avail the benefit of CENVAT credit of the Service Tax so paid. Instead of exporting the goods without payment of duty and claiming refund of the service tax paid on the input services, the petitioner had chosen to export the goods on payment of the applicable duty of excise leviable thereon and sought rebate of the duty so paid, in terms of Rule 18 of the Central Excise Rules, 2002. 7. It has been further stated that the petitioner had followed all the procedures for the export of the goods manufactured by it, on payment of duty, and had submitted the various forms and the documents, including the shipping bills, at the time of the export. The export proceeds were also realized in foreign exchange and had filed the claim for rebate of Rs.93,71,334/-, under Rule 18 of the Central Excise Rules, 2002. However, the Deputy Commissioner of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any duty is paid without availing the exemption, such payments could not be considered as duties of excise and therefore, no rebate can be availed, as per Rule 18 of the Central Excise Rules, 2002. 11. It has been further stated that the petitioner can claim refund of the duties and the Service Tax paid on the inputs and input services used in the manufacture of the exported goods, under Rule 5 of the CENVAT Credit Rules, 2004, as unutilized credit, by fulfilling the conditions stipulated therein. However, duty cannot be paid on the final goods exported by utilizing the credit and claim rebate of the duty paid in terms of Section 5A (1-A), since the goods manufactured by the Export Oriented Unit are exempted from payment of duty, in view of the Notification No.24/2003-CE, dated 31.3.2003, and the provisions in Section 5A(1-A) of the Central Excise Act, 1944. The petitioner, which is an Export Oriented Unit, cannot claim rebate of duty, under Rule 18 of the Central Excise Rules, 2002. Therefore, the rebate claim of the petitioner had been rightly rejected by way of the impugned order, which had been challenged in the present writ petition. 12. It has been further stated that Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely and unconditionally, the payment of duty on the finished goods using the credit permitted and claim of the rebate on their exports is justified and correct. 15. It has been further submitted that Rule 5 of the CENVAT Credit Rules, 2004, mandates, that before the claim of refund of credit, the finished product is to be cleared for export, on payment of duty. Only, when such adjustment is not feasible the manufacturer has to claim refund. It has been further submitted that the petitioner had followed the procedures stipulated by Rule 5 of the Central Excise Rules, 2002, and had cleared the final product for export, on payment of duty. As such, the payment of the excise duty on export of goods is legal and therefore, the petitioner is eligible to claim rebate. 16. It has also been submitted that Rule 18 of the Central Excise Rules, 2002, enables export on payment of export duty and Rule 19 of the said rules enables the export of goods without payment of duty. It depends on the choice of the manufacturer/exporter to exercise their option, between the two modes. There is no bar, under Rule 18, that 100% Export Oriented Unit cannot export on payment of export duty. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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