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2009 (8) TMI 610

..... s, 2004, for availing inadmissible credit. Similar show cause notice was issued for subsequent period also. These show cause notices are pending for adjudication. It is alleged that the respondent is become liable to pay back the Cenvat credit equivalent to the duty paid on all the inputs which were either lying in stock or in the form of work in progress or contained in the exempted finished products lying in stock on 1-3-2008 and the balance was to be lapsed. It was further alleged that the respondent was not entitled to take any further credit, and required the respondent to pay up the entire Cenvat credit availed by it between March, 2008 and July, 2008, on receipt of duty paid goods, irrespective of the fact that the exempted goods manufactured were exported by the respondent. Held that- Moreover, as per Rule 6(1) and Rule 11(3)(ii) also takes into account in a situation where the inputs are meant for use exclusively in manufacture of such final product, which become exempted, and do not envisage a special situation like in the instant case, where the common duty paid inputs are received for manufacture of both dutiable as well as exempted goods for export. The provisions of R .....

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..... duty paid goods, irrespective of the fact that the exempted goods manufactured were exported by the respondent. 6. During pendency of the above said show cause notices, two more show cause notices were issued from the office of Maritime Commissioner, pro posing to deny to the respondent rebate claims preferred by it under Rule 18 of the Central Excise Rule, 2002. These show cause notices were issued on the premise that the Cenvat Credit, which was utilized by the respondent towards payment of duty, of which rebate had been claimed was not available to it as per the show cause notice dated 9-9-08 (supra) issued by the Ld. Commissioner of Central Excise, Delhi. 7. These show cause notices were decided by the Maritime Commissioner vide dated 26-2-2009 and the rebate claims were rejected with the following observations:- (a) The respondent failed to prove correctness and validity of Cenvat Credit availed and utilized by it, inasmuch as the jurisdictional Central Excise Authorities, in view of the pending show cause notice dated 9-9-2008 for reversal of Cenvat Credit availed by the respondent, informed that it has not paid duty on excisable goods ex ported by the respondent. (b) Triplic .....

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..... yment of duty on any other final product cleared whether for home computation or ex port and, therefore, the Menthol being fully exempted from duty, the exporter is not entitled to any Cenvat credit. Before granting any rebate claim, the granting authority has to examine the nature of duty paid on the export goods as the rebate is based on the payment of Central Excise duty. Here in this case, the Cenvat credit itself is not authenticated by the Central Excise Officer, which is mandatory in refund claim on each of the Triplicate copy of ARE-1. 11. Today, the stay petition is listed before me and the Revenue filed this appeal. The issue involved is recurring nature. 12. Since the issue involved in this case is in a narrow compass and is of recurring nature, the appeal itself is taken up for final hearing. 13. Heard both sides at length. 14. It is seen that as per the revenue, the goods were removed from the factory under invoice No. 379 dated 17-3-2009. The goods under export were ac companied by ARE-01 No. 343/08-09 dated 17-3-2009 showing the payment of Central Excise duty of Rs. 7,32,701/- through Cenvat Account by debit at Sl. No. 745 in RG 23A Part II. Since the duty payment fr .....

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..... ARE-1 and if he finds that the same are correct and the goods can be exported in accordance with the laws for the time being in force shall allow export thereof. Thereafter, he will certify on the copies of the ARE-1 that the goods have been duly exported citing the shipping bill number and the date and other particulars of export. 17. The officer of Customs shall return the original and quintuplicate copies of application to the exporter and forward the duplicate copy of application either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the application, from whom exporter wants to claim rebate. Thereafter, the Assistant Commissioner of Central Excise having jurisdiction of the duty, to go into the admissibility of Cenvat credit used for payment of duty. The endorsement on the EP copy by the Assistant Commissioner of Customs to deny the rebate claim on the ground is also without any jurisdiction. 18. The Revenue has filed this appeal mainly on the ground that Menthol and Menthol BP/USP become exempted from total duty under Notification No. 4/2008 C.Ex dated 1-3-2008. Rule 11(3)(ii) read with Rule 6(i) of the Cenvat Credit Rules, .....

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..... n the final product lying in stock, if, (ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the said amount from the balance of Cenvat credit, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export, or for payment of Service tax on any output service, whether provided in India or exported. 24. He further submitted that the Hon ble Bombay High Court in the matter of Repro India Ltd. v. UOI, 2009 (235) E.L.T. 614 (Bom.) = 2008 (88) RLT 481, wherein it was held that Rule 6 (6)(v) of the Cenvat Credit Rules, 2004 are applicable when the exempted goods are exported under bond, and sub-rules (1), (2), (3) and (4) of Rule 6 are not applicable. He further submits that the Hon ble High Court also emphasized on the consistent policy of the Central Government not to export taxes but only to export the goods and the impugned order is also relied on this binding precedent of the Bombay High Court and on similar judgment the Hon ble Delhi High Court in the matter of CCE, Delhi v. Punj .....

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