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TMI Blog2010 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... anction orders (as mentioned in column no. 06 of the table given below : TABLE Sl. No. Appeal File No. Order No. & Date confirming demand Amount of demand confirmed as erroneous cash rebate (Rs.) Amount of Penalty imposed (Rs.) Rebate claim sanctioned earlier vide order No. & D (1) (2) (3) (4) (5) (6) 01 V2/143/RAJ/2007 R/744/2007 30-5-07 1,19,731 10.000 R/129/2006 28-4-06 02 V2/144/RAJ/2007 R/759/2007 31-5-07 1,08,003 10.000 R/130/2006 28-4-06 03 V2/145/RAJ/2007 R/762/2007 31-5-07 59,518 10.000 R/129/2006 28-4-06 04 V2/146/RAJ/2007 R/763/2007 31-5-07 1,19,056 10.000 R/140/2006 2-5-06 05 V2/147/RAJ/2007 R/764/2007 31-5-07 46,592 10.000 R/177/2006 4-5-06 06 V2/148/RAJ/2007 R/765/2007 31-5-07 56,175 10.000 R/178/2006 4-5-06 07 V2/149/RAJ/2007 R/766/2007 31-5-07 1,29,179 10.000 R/191/2006 17-5-06 08 V2/150/RAJ/2007 R/767/2007 31-5-07 96,425 10.000 R/279/2006 13-6-06 09 V2/151/RAJ/2007 R/768/2007 31-5-07 1,36,395 10.000 R/280/2006 28-6-06 10 V2/152/RAJ/2007 R/769/2007 30-5-07 1,34,064 10.000 R/355/2006 21-9-06 11 V2/153/RAJ/2007 R/770/2007 30-5-07 1,37,652 10.000 R/356/2006 28-4-06 12 V2/154/RAJ/2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash the excess credit available with them, they are liable for penal action under Rule 27 of the Central Excise Rules, 2002. 2.4 The Show Cause Notices were adjudicated by the Lower Authority after giving opportunity to the applicants, vide orders (as mentioned in column no. 3 of the above table) wherein he confirmed the demand of erroneously granted cash rebate in excess of 8% under Section 11A read with provisions of Section 11D of the Central Excise Act, 1944 and imposed penalty under Rule 27 of the Central Excise Rules, 2002. 3. Aggrieved by these order-in-original, the applicant filed appeals with the Commissioner (Appeals) who vide his impugned Orders-in-Appeal upheld the Orders-in-Original but sets aside the penalty imposed on the applicant. 4. Aggrieved by these Order-in-Appeal, the applicant has filed their revision application on the following grounds : 4.1 The refund of excess amount paid through Cenvat Credit amount, shall be sanctioned in cash, and once sanctioned and paid, cannot be demanded, at least without reviewing the rebate sanctioning orders. The excess duty paid shall not be differentiated and shall be rebated. We rely on the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he export goods covered by a claim. Further, the Board has also clarified that, since there is no need to reducing rebate, the question of taking of re-credit in RG23 A Pt. II or RG 23 C Pt. II do not arise. Thus it is clarified that, the rebate shall be granted of duty paid and not duty payable. (C) Precedent are in Favour of the Applicant (i) We respectfully pray your honour to consider the following case, which is the direct judgment in issue : Bharat Chemicals v. CCE, Thane reported in 2004 (170) E.L.T. 568 (T-Mum.) wherein the Bench has held that, "4. We are inclined to accept the applicant's claim. Rule 12 of Central Excise Rules speaks of "rebate of duty paid on the excisable goods" and "duty paid on materials used in the manufacture of goods" and not of duty payable. Duty payment may be erroneous, at as higher or lower rate. The Scheme of the Statute seems to be, to return as rebate, actual amount of "duty paid" and not the amount of duty "payable". In the present case, the rebae paid is equal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the procedure appended to Notification 43/2001-C.E. (N.T.) and procure the goods without payment of duty. In such circumstances the applicant need not have the burden of duty paid on raw material. (b) The applicant could have followed the procedure appended to Notification 21/2004-C.E. (N.T.) and get the rebate of full duty paid on the raw material consumed in export goods. In these circumstances also the applicant need have burden of duty paid on raw material. (c) The applicant could have followed the procedure of Rule (5) of Central Excise Rules, 2004, and could have exported the goods under UT-1/Bond and could get the rebate of accumulated credit. In view of above situations, the applicant need not have the burden of duty paid on raw material. Therefore, for not following the procedure and by paying excess duty is not offence at all. There was no mala fide of the applicant, nor there is any revenue loss for the department. Therefore the alleged portion of the order-in-original is bad in law and liable to be discarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 6 of the table. Subsequently, Asstt. Commissioner issued show cause notices proposing to deny the excess rebate and to further recover the amount of excess rebate given. Asstt. Commissioner confirmed the demands vide order-in-original as mentioned in column no. 3 of the table which was upheld by Commissioner (Appeal). Applicant has contended that as per CBEC Circular No. 423/56/98-CX., dated 22-9-98 (F.No. 387/78/98-JC) issue of show cause notice for recovery of erroneously refund should follow the review of the order sanctioning refund. They have further relied upon the Hon'ble CESTAT Final Order No. 930/06 dated 19-5-06 in the case of Voltas Ltd. v CCE, Hyderabad reported as 2006 (202) E.L.T. 355 (T.-Bang.) wherein it has held that "Demand- erroneous refund-order of Assistant Commissioner sanctioning refund not challenged at all by the Revenue- Show cause notice issued for recovery of erroneous refund not sustainable- Board Circular No. 324/56/98-CX., dt. 22-9-98 - Section 11A of Central Excise Act, 1944. Against the contention of the applicant Commissioner (Appeal) while disagreeing with said contention relied upon Bombay High Court Judgment in the case of M/s. Indian Dye S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with proceeded to and is to be decided on individual facts, merits and principals of proper justice so as to support and uphold the sanctity of constitutional validity of law as per statutory legal provisions. The "Precedents" are to be judiciously applied in such a way that the proceedings should not be directed towards and in support of any unconstitutional/invalid order. The guiding factor in such situations should be as per "Hon'ble Supreme Court in para 10 of the judgment in the case of Escorts Ltd. v. CCE, Delhi-II [2004 (173) E.L.T. 113 (S.C.)] observed, inter alia, that one additional or different fact may make a word of difference between conclusion of two cases, and in para 11 further inferred as following :- "11. The following words of Lord Denning in the matter of applying precedents have to become locus classiance :- 'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect...............'" 10. In view of above, Government, therefore, finally observes in this case that even if the appeal proceedings are initiated under Section 35E(2), it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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