TMI Blog2010 (4) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... unded levy scheme based on capacity of production which included gallery portion. Part of production was cleared for exports, through merchant exporters and refund of the said duty (including duty on account of gallery portion) was sanctioned and paid to the merchant exporters as rebate on exports on NOC of the appellant. Dispute arose as to the determination of capacity of production and in particular whether gallery portion of a stenter be counted for capacity. The dispute was finally settled in favour of trade. Consequently, appellant filed claim of refund of Rs. 8,88,033/- on the ground that it paid duty on a capacity, which included the gallery portion. 2. The refund was granted vide STR-III/ADJ-55/Ref/2003, dated 30-5-03 by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate sanctioned to the merchant exporter became inadmissible and erroneous and therefore it was the merchant exporter who had claimed the rebate, who was required to make the refund. In fact, the department should have approached the merchant exporter and required him to refund the rebate sanctioned to him in terms of undertaking given by him. 5.3 Another point that was raised by the learned advocate was that the department should have filed an appeal against the refund sanctioning order and demand under Section 11A alone without review under Section 35E would not be sufficient. He relied upon several decisions of the Tribunal. 6. On the other hand, the learned SDR submitted that the appellant had made a mis-declaration when rebate had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier. Even though in the case of exports, it is called rebate in reality it is a refund of excise duty paid on the exported goods. Only when the manufacturer gives a declaration and authorize merchant exporter to claim rebate, the said rebate is sanctioned. Therefore, it can be said that the merchant exporter claims rebate as an agent or as a party authorized by the appellant. Therefore, it cannot be said that the declaration made by the appellant in the refund claim is true under these circumstances. Therefore, the invocation of extended period is appropriate. 8.2 As regards claim that it was merchant exporter from whom the department should have recovered the amount, it would have been correct if the appellant did not claim refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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