TMI Blog2012 (5) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be allowed as CENVAT Credit as if it was a duty paid by the manufacturer, who removes the goods. So provision of 16(2) makes it clear that the amount actually paid is nothing but duty and as such payment by the Respondents should be treated as payment of duty, Respondents are eligible for rebate on payment of duty paid against export product by way of debiting of Cenvat Credit - Revision Application by revenue rejected. - - - 461/2011-CX - Dated:- 4-5-2011 - Shri D.P. Singh, J. REPRESENTED BY : Shri Abhishek Singh Bhagel, Advocate, for the Assessee. [Order]. This revisions application has been filed by the applicant Commissioner of Central Excise, Chandigarh against the Orders-in-Appeal No. 349/CE/CHD/2008, passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed to have exported after processing, not amounting to manufacture. The said Orders-in-Original was challenged by the Respondent before the Commissioner (Appeals), who allowed the same. 3. Being aggrieved by the impugned order-in-appeal, the applicant Commissioner has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 3.1 The Commissioner (Appeals) has erroneously relied upon Explanation appended to Rule 16(1) for the purposes of rebate whereas this clause is about taking cenvat credit by the buyer, in case the goods are again cleared for home consumption. This explanation is only a deeming provision to enable a domestic buyer to avail credit of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no longer in force now. 4. In response to the Show Cause Notice issued under Section 35EE of the Central Excise Act, 1944, the respondent party has made following cross objects and submission :- 4.1 The assessee has correctly paid duty from the Cenvat account and it could not be held that the amount so paid is not the duty. 4.2 It is not disputed that the goods which were exported under rebate claim were earlier cleared into DTA after payment of duty and their duty paid character cannot be doubted. 4.3 The legal fiction created under Rule 16 cannot be vivisected to treat payment of duty as payment of amount but at the same time to restrict the scope of fiction created under the Explanation which provides that the amount paid under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for hearing from the office of the applicant Commissioner. 6. Government has carefully gone through the records of the case including submissions as made so far in this case matter. 7. The issue to be decided in whether the rebate claim is in admissible on the ground that reversal of credit cannot be treated as duty payment but it is only payment of amount . 7.1 Government observes that the fact of clearance of 93.000 Kgs of Clopidogrel Hydrogen Sulphate to M/s. Indoco Remedies Ltd., Goa on payment of duty and receiving back of 92.748 Kgs of goods in the factory and re-credit of Cenvat of such payment is not in dispute. The Respondents got cenvat credit of duty involved against 92.748 Kgs in terms of Rule 16(1) of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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