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2014 (2) TMI 2 - GOVERNMENT OF INDIAClaim of simultaneous benefits in alternate i.e. export without payment of duty against LUT as well as claim of rebate on payment of duty - Denial of recredit - Denial of duty drawback - Non-following of procedure – export of exempted goods - Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 - Held that:- respondents have made clearance of the impugned goods to the SEZ Unit under specific UT-1 Bond No. 28/2008, dated 3-4-2008 under Drawback scheme without payment of duty under Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19 of the Central Excise Rules, 2002. The respondents contended that they have subsequently paid the applicable duty of Rs. 487439/- vide debit entry No. 598 dated 31-3-2009 in Cenvat account with disclaimer certificate that they are not claiming Duty Drawback on the said export. There are two export benefit schemes which are stipulated in Rule 18 and Rule 19 of the Central Excise Rules and Notification issued thereunder. According to the Rule 18 when any excisable goods are exported on payment of duty or duty is paid on materials used in manufactured goods which are exported, rebate is granted subject to condition or limitation if any fulfilment of procedure specified in concerned Notification i.e. in Notification 19/2004-C.E. (N.T.), dated 6-9-2004. Whereas as per Rule 19 excisable goods/materials can be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises subject to conditions, safeguard and procedures as specified by Notification by the Board and for this very purpose Notification 42/2001-C.E. (N.T.), dated 26-6-2001 is applicable. The manufacturer/exporter is free to opt one of the Rules, which is more beneficial/suitable to him. Once anyone of the two options is exercised it attains finality and cannot be reverted back subsequently. It is very much clear that the respondents have made clearance of goods under UT-I Bond No. 28/2008, dated 3-4-2008 hence they have exercised the option to export goods under Rule 19 and in no way it was further open for him to pay duty and claim rebate thereupon. In such a situation payment of duty cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government - 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 - Following decision of M/s. Nahar Industrial Enterprises Ltd. v. UOI [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT] - Decided in favour of revenue.
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