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2022 (2) TMI 558 - HC - Central ExciseRebate u/r 18 of CER - Payment of duty from inadmissible CENVAT credit availed - Advance Authorisation scheme - benefits of duty free imports - petitioner had obtained advance authorisations and imported goods without payment of duty in terms of notification dated 11.09.2009 - HELD THAT:- It appears quite undisputable that the petitioner had availed the facility of importing goods under advance licences without payment of duty. In some cases such advance licence were invalidated in order to procure raw material duty free from local manufacturers. Raw materials so procured were utilised for manufacturing the export goods. At that time the petitioner availed the CENVAT credit and later on claimed the rebate under rule 18. As is well known, the rules of 2002 recognise two regimes for equalising excise duty element on raw material used for export of course subject to the conditions specified by the Government of India. Under rule 18 the Central Government may by notification grant rebate on duty paid on excisable goods which are used for production of export goods. Under rule 19 a manufacturer can procure such goods without payment of duty on a condition that same would be used for manufacture of goods which would be exported. Both these rules 18 and 19 of the rules of 2002 concern payment of duty. Under Rule 18 there would be rebate of duty paid. Under rule 19 the duty which is otherwise payable is waived subject to condition of using raw material for manufacturing export goods. The amount was not deposited in cash but by encashing CENVAT credit. Various judgments have made observations to the effect that payment of duty through CENVAT facility is as good as duty paid. However as observed earlier, it is not an instance of duty being paid. It is an instance of depositing certain sum with Government of India which was not payable. We therefore are in agreement with the view of appellate and revisional authorities that by this means the petitioner cannot claim refund of the amount which was offered through CENVAT credit. As is well known unused CENVAT credit can be encashed subject to certain terms and conditions. The petitioner cannot encash the CENVAT credit without following the procedure for making application and inviting a scrutiny whether the terms and conditions under which such unused CENVAT credit can be encashed are satisfied. Petition dismissed.
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