9911796707
TMI Blog2010 (2) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. However, while exporting the goods i.e. cotton yarn as well as polyester/viscose yarn, they pay Central Excise Duty and claim rebate of duty paid. For the exports so undertaken by them they had filed rebate claims. After scrutiny of the claims Asstt. Commissioner, Hyderabad-J Division sanctioned an amount of Rs. 8,14,877/-, Rs. 10,70,500/-, Rs. 7,80,983/- and Rs. 2,05,193/- in different rebate claims. The amount of rebate pertaining to assessable transaction value as per Section 4 of the Central Excise Act, 1944 in cash and allowed the credit in the cenvat account pertaining to rebate claim on post-manufacturing expenses freight, etc. 2.1 However, the Commissioner reviewed the orders-in-original and filed the appeals with the Commissioner (Appeals) on the following grounds : (i) The respondents are not maintaining separate accounts of inputs used in manufacture of dutiable goods i.e. polyester yarn/viscose yarn and blended yarn as required under Rule 6 of Cenvat credit Rules, 2004. As per Board's Circular No. 795/28/2004-CX., dated 28-7-2004, in case the assessee avails the benefits of the Notifications 29 & 30/2004-C.E., dated 9-7-2004 simul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue whether assessee can clear the goods for home consumption under NIL rate of duty and the goods cleared for export on payment of duty simultaneously, so as to utilize the Cenvat credit lying in balance which is nothing but financial accommodation to avail rebate. 3.2 Assessee manufactures cotton yarn & blended cotton yarn, from the inputs cotton fibre and clears them without payment of duty for home consumption under Notification 30/2004 hence he is not availing duty of credit on inputs. 3.3 Assessee also manufactures polyester yarn, viscose yarn and polyester/viscose blended yarn from the polyester/viscose fibre and clears these goods for home consumption on payment of duty under notification 29/2004 for which the duty has been paid from the Cenvat credit taken on raw material viz. polyester fibre and viscose fibre. 3.4 Assessee also clear these goods for export on payment of duty and claims rebate of such duty. As far as polyester/viscose yarn is concerned there is no problem as credit of duty is available to them on account of the raw material used therein and these goods otherwise also cleared on payment of duty for home consumption. 3.5 Whereas with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal officers that the assessees are not maintaining separate account of inputs used in manufacture of non-dutiable goods and dutiable goods which is mandatory. Commissioner (Appeal) has not verified the veracity of the submissions made by the assessee. 4. A notice under Section 35EE of Central Excise Act, 1944 was issued to the respondent who filed their counter reply vide their letter dated 30-5-2008. Their main arguments are as under : 4.1 A careful reading of the findings recorded by the Commissioner (Appeals) reveals that the Commissioner has correctly interpreted the Cenvat credit Rules, the two notifications and the Board Circular No. 795/28/2004-CX., dated 28-7-2004. The Commissioner (Appeals) has taken up each and every ground taken in the appeal filed by the department and held that none of the grounds are legally valid. He correctly held that as per Rule 3(4)(a) of the Cenvat credit Rules, there is no requirement that the credit of the inputs used in the manufacture of a product should be used only for payment of duty on the final product manufactured with those inputs. The credit taken on any inputs can be used for payment of duty on any final products. 4.2& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28/2004-CX., dated 28-7-2004, the Commissioner (Appeals) even made an attempt to examine the contention of the department and found nothing of that sort in the circular dated 28-7-2004 which stipulate that the credit accrued on the inputs used in the export goods should alone be rebated in case the assessee avails simultaneously both the Notifications Nos. 29/2004-C.E. and 30/2004-C.E. as relied on by the department Since there is no such stipulation in the said circular, the Commissioner (Appeals) has rightly rejected this contention also. 4.7 With regard to the allegation that the assessee had not maintained separate accounts for the inputs used in the exempted goods and dutiable goods, the Commissioner (Appeals) on verifications of the factual report of the jurisdictional Range Officer, as mentioned in para 8 of the impugned orders, has correctly held that separate records were maintained by the assessee. 4.8 As can be seen from the above discussion, the Commissioner (Appeals) orders were complete in all aspects and all the grounds raised in the grounds of appeal were carefully examined and it was rightly held that the same are not sustainable. 4.9 As already r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as polyester/viscose yarn is concerned, there is no problem as credit of duty is available to them on account of the raw material used therein and these goods otherwise also cleared on payment of duty for home consumption. Whereas with regard to cotton yarn, as the assessee operating under Notification 30/2004, Cenvat credit on raw material is available to them. If he is clearing the goods on payment of duty for export, it can be presumed that he is opting for Notification No. 29/2004-C.E. for such clearances. The assessee has been clearing cotton yarn for export by paying 4% duty. Therefore it is clear that the assessee has been clearing the goods under notification 29/2004-C.E. only. 4.11 In this context, Board has issued a Circular particularly to deal such situations where assessee operates under both the notifications 29/2004 and 30/2004 simultaneously. The language and the intent of this clarification is that for availing the benefits of both notifications, it is mandatory to the assessees to maintain separate accounts. As it can be seen from the wordings of the notification 30/2004-C.E. wherein it is clear that nothing contained in this notification shall apply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were listed for personal hearing on 26-10-2009, Sh. N.V.T.D. Prasad, Deputy Commissioner appeared on behalf of the applicant Commissioner and reiterated the grounds of revision application. Sh. K. Vijay Kumar, Advocate appeared on behalf of the respondent and reiterated their submissions made in their counter reply dated 30-5-2008. 6. Government has considered the relevant case records, both oral and written submissions of the applicant and the respondent and also perused the orders passed by the lower authorities. 7. From the perusal of the records, Govt. observes that the respondent was working under both the Notification Nos. 29/2004-C.E. and 30/2004-C.E. simultaneously as provided under C.B.E.& C. Circular No. 795/28/2004-CX., dated 28-7-2004. As per the requirement of the said circular, the respondent was maintaining separate records for the goods cleared under Notification Nos. 29/2004-C.E. (N.T.) and 30/2004-C.E. (N.T.), dated 9-7-2004 as certified by the jurisdictional Range Supdt. vide their letter O.C. No. 157/2007, dated 21-5-2007 addressed to the Assistant Commissioner of Customs & Central Excise, Hyderabad J Division. So one of the ground of revision applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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