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2013 (5) TMI 378 - HC - Central ExciseBenefit of rebate under Notification No.19/2004 dated 6.9.2004 against export - Area bases Exemption - unit situated in Kutch area availing the benefit of Exemption Notification No.39/2001 dated 31.7.2001 - Held that:- Claim for rebate under Exemption Notification No.19/2004 would accrue upon actual export of goods. Mere clearance of the goods for export from the factory premises would not be sufficient. Fulfillment of such a condition is necessary but not sufficient for exporter to claim rebate. Therefore, on all the exports made by the petitioner after 17.9.2007, the petitioner had no accrued right to claim rebate on the basis of unamended notification on the basis of clearance of goods from the factory. Mere fact that such goods were cleared from the factory premises for export before such date, would not give rise to an indefeasible claim of rebate. When by amendment in the Exemption Notification No.19/2004 an additional clause (h) to paragraph 2 was added introducing an additional condition that such amended notification would apply to all exports made after 17.9.2007 stating that in case of export of goods which are manufactured by a manufacturer availing the notifications of the Government of India No.39/99-Central Excise, dated the 31st July, 2001 and some more as specified the rebate shall not be admissible under this notification. It is undisputed that the petitioner is covered by such condition since the petitioner claims benefit of Exemption Notification No.39 of 2001. In that view of the matter, the Appellate as well as Revisional Authorities committed no error. Order beyond the scope of the show cause notice - Held that:- It is true that reference to this objection was in relation to the clarification issued by CBEC in this respect. However, the petitioner itself was acutely conscious of the amendment in the Notification No.19 of 2004. It was precisely for this reason that at the very outset, in the reply to the show cause notice itself, the petitioner raised the contention that such amendment would not apply to the exports, which may have been made after 17.9.2007 but clearance of which was made from the factory for export before such date. Thus the issue whether such amendment would apply in above set of facts was very much at large before the Adjudicating Authority. It is not even the case of the petitioner that any disputed facts are involved for examining this legal issue. Notifications are in the nature of delegated legislation. The question, therefore, is Rule amended or unamended, should apply to admitted set of facts, is pure question of law. Had the petitioner been denied the fair opportunity to raise any contention factually or legally, the grievance of breach of natural justice would have been valid. - Decided against the assessee.
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