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2020 (2) TMI 1372 - HC - Central ExciseRebate Claim - petitioner challenged the order denying rebate of Central Excise duty all the way up to the 1st respondent, the Joint Secretary Revision Application, New Delhi under Section 35EE Central Excise Act, 1944 - Rule 18 of the Central Excise Rules, 2002 - period August to September 2009 - HELD THAT:- The petitioner has opted to pay Excise duty in terms of the Notification No. 29/2004-C.E., dated 9-7-2004. Therefore, it cannot be said that the organic cotton yarn exported by the petitioner was not liable to Excise duty so as to deny the benefit of rebate claim under Rule 18 of the Central Excise Rules, 2002 - Notification No. 30/2004 is a conditional notification which allows the manufacturer to clear the goods at nil duty provided no credit is availed on inputs of capital goods under the provisions of the Cenvat Credit Rules, 2002. As per sub-clause (1A) to Section 5A of the Central Excise Act, 1944 in case of excisable goods which is fully exempt from payment of excise duty the manufacturer cannot be [levied] Excise duty. However, in the facts of the case it is noticed that organic cotton yarn is exempt under Notification No. 30/2004-C.E., dated 9-7-2004 under a conditional notification which the petitioner has not fulfilled - It is the choice of the manufacturer whether to opt for the benefit of one of the notification. It cannot be forced on the petitioner merely because the revenue would stand to gain by denying rebate of central excise duty paid on the exported organic cotton yarn under Rule 18 of the Central Excise Rules, 2002. The fact that the petitioner had availed Cenvat credit on the inputs and capital goods and debited the same itself shows that the petitioner was not entitled to the benefit of Notification No. 30/2004-C.E., dated 9-7-2004 - Since the petitioner has utilised Cenvat credit for discharging Excise duty on the final product, show that the petitioner was therefore incapable of availing the benefit of Notification No. 30/2004-C.E., dated 9-7-2004. The denial of rebate of Central Excise duty paid by the petitioner on the exported goods under Rule 18 of the Central Excise Rules, 2002 cannot be sustained - 2nd respondent is therefore directed to pay the rebate of excise duty paid on the exported organic cotton yarn within a period of 45 days from the date of receipt of copy of this order together with interest under Section 11BB of the Central Excise Act, 1944 - petition allowed.
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