TMI Blog2012 (5) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... sit with Government was rightly ordered to be returned as re-credit in the Cenvat Credit account by original authority. - - - 497/2011-CX - Dated:- 19-5-2011 - Shri D.P. Singh, J. REPRESENTED BY : Shri N. Prem Kumar, Asst. Commr., C. Ex., for the Assessee. Shri Dharmendra Kumar Singh, Consultant, for the Department. [Order]. This revision application is filed by Commissioner of Central Excise, Bangalore-I against the order-in-appeal No. 96/06-Central Excise dated 28-9-2006 passed by Commissioner of Central Excise (Appeals-I), Bangalore. M/s. Reva Electronic Care Company Pvt. Ltd., No. 122-E, Bommasandra Industrial Area, Bangalore are the respondents in the case matter. 2. Brief facts of the case are as under :- 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The cars exported, though not fitted with electrical batteries, are still electrically operated vehicle and are eligible for concessional rate of duty under Notification No. 6/2002-C.E., dated 1-3-2002. 4.2 The duty on the goods under export was paid incorrectly at tariff rate of 16% BED, 8% SED and 2% Education Cess instead of 8% BED. 4.3 The clarification given by the Board vide its Circular No. 510/06/2000-CX., dated 3-2-2000 has not been read in its entirety. As para 3 of the circular it states that the rebate sanctioning authority shall refer the matter to the jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D for battery powered road vehicles . Explanation to the said entry read as battery powered road vehicles means road vehicles which are run solely on electrical energy derived from one or more electrical batteries fitted to such road vehicles. As the cars exported were not with batteries the duty paid was full rate instead of concessional rate of duty given under the exemption. The Noticee submits that since the cars are not fitted with batteries it cannot be cleared under concessional rate of duty. Therefore the duty paid is proper. 5.2 Assuming that the cars though not fitted with batteries are still entitled for exemption. Exemption Notification No. 6/2002-C.E., dated 1-3-2002 gives only a concessional rate of duty and does not give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it is held that Actual amount of duty paid to be returned as rebate and not the amount of duty payable . Duty payment may be erroneous at a higher or lower rate and rule relating to rebate makes no distinction based on the source or manner of payment of duty. Therefore the rebate allowed by the order of the Commissioner (Appeals) is proper. 5.6 Further reliance is also placed on the Board Circular No. 510/06/2000-CX., dated 3-2-2000 wherein it is held that in the circumstances where the duty is excess paid, the same cannot be given as credit into RG 23A Part II and the entire amount has to be given as rebate. The objection in the application in this regard there is a reference in the circular that the rebate sanctioning authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore cash rebate was allowed to extent of duty payable in terms of Notification No. 6/2002-C.E., dated 1-3-2002. The balance amount was allowed as re-credit in the applicant s Cenvat account. However, Commissioner (Appeals) allowed the cash rebate of total duty paid by applicant. Now department is contesting the impugned order-in-appeal on the grounds stated in para 4 above. 9. Government notes that applicant department is pleading to restore the impugned order-in-original mainly on the grounds that electric battery operated car with batteries fitted on them are still battery powered road vehicles eligible for concessional rate of duty and therefore amount paid in excess of duty payable cannot be refunded in cash whereas respondent party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was required to be paid in terms of Notification No. 6/2002-C.E., dated 1-3-2002 @ 8% BED. Any amount paid in excess of their effective rate of duty cannot be treated as duty and has to be treated as deposit with the Government. 10. It has been stipulated in the Notification No. 19/04-C.E. (N.T.), dated 6-9-2004 and the C.B.E.C. Circular No. 510/06/2000-CX., dated 3-2-2000 that rebate of whole of duty paid on all excisable goods will be granted. Here also the whole duty of excise would mean the duty payable under the provision of Central Excise Act. Any amount paid in excess of duty liability on one s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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