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2013 (6) TMI 678 - CGOVT - Central ExciseDenial of rebate claim - applicant cleared the exported goods by payment of 10% duty instead of 8% duty payable and received rebate claim of duty paid @10% - Held that:- erroneous refund/rebate sanctioned under an order can be recovered by invoking provisions of Section 11A of Central Excise Act, 1944, without taking recourse to provisions of Section 35E ibid and filing appeal against the assessment on the basis of which refund was initially sanctioned. Hence, Government finds that appellate authority erred in holding that since the assessment at the time of export was not challenged, the rebate claim cannot be reduced with reference at time of assessment.- export goods shall be assessed to duty in the same manner as the goods cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in Schedule of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. These C.B.E. & C. Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. The said instruction is issued specifically with respect to sanctioning rebate claim of duty paid on exported goods and therefore assessee has to pay the effective rate of duty and claim rebate accordingly. Government holds that duty was required to be paid @ 8% on said goods on 24-2-2009, and rebate is admissible of duty paid @ 8% only under Rule 18 of Central Excise Rules, 2002 read with Notifn. No. 19/2004-C.E. (N.T.), dated 6-9-2004. Any plea of ignorance of law cannot be admitted as legal and proper - any amount paid in excess of duty liability on one’s own volition cannot be treated as duty and it has to be treated as a voluntary deposit with the Government which is required to be returned to the assessees/respondents in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. - Impugned order is set aside - Decided in favour of Revenue.
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