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2009 (8) TMI 610

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..... to 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 Rule 6(6)(v) are the specific rules, which covers the situation as in the instant case, and thus the Cenvat credit of duty paid on dutiable was correctly held as admissible by the Ld. Commissioner (Appeals). In these terms, I do not find any merit in the appeal and the same is dismissed. Stay application is also disposed off accordingly. - C/712/2009 - A/452/2009-WZB/C-IV/(SMB) - Dated:- 12-8-2009 - Shri Ashok Jindal, Member (J) Shri B.P. Pareira, JDR,for the Appellant. Shri C. Harishankar, Advocate, for the Respondent. [Order]. - This appeal is filed by the revenue against the order-in-appeal passed by the Commissioner of Customs (Appeals) wherein he set aside the order-in-original. 2. The brief facts of the case are that the respondent is a manufacturer registered with the Central Excise for the manufacture and export of Menthol Crystals BP/USP and F .....

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..... 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) Triplicate copy of ARE-1 was neither made available by the respondent nor by the Range Superintendent. (c) For ascertaining the duty paid nature of the goods exported, the correctness/authenticity of the duty paid on excisable goods and genuineness of the availment of Cenvat Credit utilized for the same was to be verified. Duty payment on exported goods was however by utilizing disputed credit. (d) Rebate claims under Rule 18 of Central Excise Rules, 2002, read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and Notification No. 20/2004-C.E. (N.T.), dated 6-9-2004 were therefore not admissible and as such were liable for rejection for non-discharge of duty in respect of export goods. 8. The respondent challenged the said order, which is also pending for adjudication. 9. In this background, now coming to the facts, before me for adjudication .....

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..... 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 from Cenvat credit account is entered in RG 23A Part II, Rule 10 of the said Rules, has been complied with and consequently the conditions of payment of duty is satisfied in terms of para 1.1, (1)(i) of Part-I of Chapter 8 of the Central Excise Manual of CBEC s Instructions. The said Chapter 8 deals with Export under claim for rebate of the Central Excise Manual of CBEC s Instructions as on 1-3-2005. There is no dispute that the condition relating to the export under claim of rebate, as provided under Chapter 8 Part I - Export to all countries except Nepal and Bhutan, under self sealing and self certification have been complied with. The triplicate copy of the ARE-1, which is required to be sent by the manufacturer/exporter to the jurisdictional Central Excise Officer, and not to the place of export as specified, under para 6.2 of the Chapter 8 .....

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..... e 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, 2004 would come into operation and, therefore, the credit lying with the respondent/manufacturer/exporter shall lapse and shall not be allowed for payment of duty on any other final product and further submitted that this issue is of recurring nature. 19. This fact is not in dispute that the respondent is a manufacturer/exporter registered with the Central Excise. The duty paid inputs received by the respondent were either used in manufacturing flavouring material or as a common input for manufacture of Menthol Crystal BP/USP and flavouring material. On i-3-2008, Menthol Crystal and Menthol BP/USP became exempt from duty under Notification No. 4/08-C.E., dated 1-3-2008. Thus, duty paid on common inputs were now meant for manufacture of exempted (Menthol Crystal BP/USP) as well as dutiable (flavouring material) final products. It is also not i .....

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..... ble. 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. Punjab Stainless Steel, 2009 (234) E.L.T. 605 (Del.) read with Rule 6 of Cenvat Credit Rules, 2004 to hold that benefit of duty paid on common dutiable input is available as credit to the appellants . He, further, submitted that the Hon ble Bombay High Court vide its order dated 6-5-2009 in Writ Petition No. 4533 of 2009 filed by the respondent was pleased to quash and set aside the said order-in-original dated 26-6-2009 passed by the Assistant Commissioner and directed to decide bearing in mind the ratio of the judgment in Repro India Ltd. (supra). 25. After examining and submissions made by the parties, it is clear that Rule 11 (3)(ii) is only a transitional provision without any non abstain clause and is not an over riding provisions to erode the benefits conferred vide Rule (3), (4), (5) and (6) of the Cenvat Credit Rules, 2004. Moreover, as p .....

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