TMI Blog2012 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ially sanctioned. - Decided in favour of Revenue. - F. No. 195/883/2010-RA - 742/2012-CX - Dated:- 3-7-2012 - Shri D.P. Singh, Joint Secretary Shri S.S. Dabas, Advocate, for the Department. ORDER This revision application is filed by M/s. Welspring Universal, New Delhi against the Order-in-Appeal No. 479/CE/D-II/10, dated 27-8-2010 passed by Commissioner of Central Excise (Appeals), Delhi-II with respect to Order-in-Original No. 17/09-10, dated 25-8-2009 passed by the Additional Commissioner of Central Excise, Delhi-II. 2. Brief facts of the case are that the applicants are holder of Central Excise Registration and are engaged in the manufacture of Welding machine tools/accessories classifiable under tariff items 8205 20 00 and 8468 90 00 of the Central Excise Tariff Act, 1985 and are licensed under Sections 58 and 65 of the Customs Act, 1962 as 100% Export Oriented Undertaking (EOU), Private Bonded Warehouse vide Licence No : 1/05-06, dated 17-1-2007. They were also availing Cenvat Credit facility for domestic clearance of goods in terms of Cenvat Credit Rules, 2004. On account of exportation of the goods manufactured by them they filed two rebate claims amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, Division-V, Delhi-II, passed Order-in-Original No. 62/07-08, dated 24-5-2007 and sanctioned the rebate of ₹ 10,16,290/- on the aforesaid goods which were exported under claim for rebate of duty paid on the final products. The rebate claim was sanctioned after pre-audit of the claim by Audit Branch of Central Excise Commissionerate, Delhi-II, which is under direct control of Commissioner, Delhi-II. 4.2 As per established practice, the said Order-in-Original No. 62/07-08, dated 24-5-2007 (under which rebate of duty of ₹ 10,16,290/- was sanctioned), surely must have been accepted by Commissioner, Delhi-II, under Section 35EE(2) of the Central Excise Act to be proper and legal. Therefore, an order which has been accepted by Commissioner to be legal and proper cannot be overruled by Additional Commissioner. 4.3 In view of the time frame prescribed under Section 35EE of the Central Excise Act, it can be presumed safely that the said Order-in-Original No. 62/07-08, dated 24-5-2007 (under which rebate of duty of ₹ 10,16,290/- was sanctioned), has acquired finality, otherwise, a direction or order would have been passed by Commissioner, Delhi-II, to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein duty liability on the export goods was indicated as DISCHARGED and the jurisdictional authorities agreed with such payment of duty on export goods. Thus, the duty of excise paid on the export goods has been finally assessed and accepted by the department as duty of excise under Section 3 of the Central Excise Act. In fact no objection has so far been raised for export of goods on payment of duty. Therefore, rebate of duty, paid on export goods, that has already been assessed and accepted, as duty under Section 3 of the Central Excise Act, cannot be denied at a later stage. 4.8 The rebate of duty has been sanctioned under Rule 18 of the Central Excise Rule which stipulates that where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods and the rebate shall be subject to such conditions or limitations, if any, and fulfilment of such procedure as may be specified in the notification. It may be noted here that Central Government has issued Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004, granting rebate of full duty paid on the export goods. The said notification does not lay down any condition to the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the exemption contained in this Notification in respect of duty of excise leviable under Section 3 of said Central Excise Act shall not apply to such goods if brought to any other place in India ; 8.2 Sub-section (1A) of Section 5A of the Central Excise Act, 1944 states as follows :- (1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely the manufacturer of such excisable goods shall not pay the duty of excise on such goods. 8.3 Government notes that the Notification No. 24/2003-C.E., dated 31-3-2003 was issued under Section 5A(1) of Central Excise Act, 1944, exempts goods manufactured by 100% EOU and cleared for export from whole of duty unconditionally. Therefore in view of provisions of sub-section (1A) of Section 5A, the applicant manufacturer cannot pay duty. Applicant has contended that the said notification is conditional as the duty is payable on DTA clearances. Government notes that there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate. Hon ble High Court of Punjab Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in cenvat credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially. Government directs that said amount paid by applicant may be allowed to be re-credited in their Cenvat Credit Account. The impugned Order-in-Appeal is modified to this extent. CBEC vide circular No. 940/1/2-11-CX., dated 14-1-2011 has clarified that manufacturer cannot opt to pay duty in respect of unconditionally fully exempted goods and he cannot avail the Cenvat credit of the duty paid on inputs. The instruction of Board are binding on the departmental authorities as held by Hon ble Supreme Court in the case of Dhiren Chemical Industries Ltd. v. CCE, Vadodara - 2002 (139) E.L.T. 3 (S.C.). 10. Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in coming to the conclusion that no Show Cause Notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130. 10.2 While referring to the above-mentioned case law in the case of Collector of Central Excise, Bhubaneshwar v. Re-Rolling Mills [1997 (94) E.L.T. 8 (S.C.)], the Hon ble Supreme Court has held as under : The learned counsel for the parties do not dispute that this appeal is covered by the decision of this court in Union of India Ors. v. Jain Shudh Vanaspati Ltd. Anr. - 1996 (86) E.L.T. 460 (S.C.) = (1996) 10 SCC 520. In that case the court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of the Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed with no order as to costs. 10.3 In ITI Ltd. v. Commissioner of Customs, ACC, Mumbai [2008 (228) E.L.T. 78 (Tri.-Mumbai)] it has been held : 11. We hold that the issue of Show Cause Notice under section 28 of the Customs Act, 1962 for recovery of the erroneously granted refund is sufficient to meet the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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