TMI Blog2012 (10) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... Invoices, ARE-1s and other particulars submitted to the jurisdictional Central Excise Office. The goods were examined under Central Excise supervision and duty payment was also certified by Central Excise as per endorsements on the ARE-1s. The assessments/value of clearances were stated to be proper “transaction value” and due duty was calculated/paid as above - such clearances of “used” capital goods from the factory of their uses which is other than the factory of manufacture of said capital goods when exported are eligible for rebate - F. No. 195/937/2010-RA - 1401/2011-CX - Dated:- 14-10-2011 - Shri D.P. Singh, J. REPRESENTED BY : S/Shri P.K. Shetty, Advocate and D.W. Deshpande, G.M. Indirect Tax, for the Assessee. [Order]. The revision application is filed by M/s. Positive Packaging Industries Ltd., against the order-in-appeal No. YDB/525/RGD/2010 dated 24-8-2010 passed by Commissioner of Central Excise (Appeals), Mumbai-II with respect to order-in-original No. Raigad/KPL/RC/2708/09-10, dated 30-6-2009 passed by the Asstt. Commissioner, Central Excise, Khopoli Division. 2. Brief facts of the case are that the applicant M/s. Positive Packaging Industries Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty . 3. Being aggrieved by the said order-in-original, applicant field appeal before Commissioner (Appeal) who after in depth analysis of above clearances of used capital goods rejected the appeal on alone ground that it is not possible to ascertain whether any credit was required to be reversed or duty was required to be paid. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government mainly the following grounds : 4.1 Commissioner (Appeals) erred in rejecting the appeal on the grounds which was neither in the Show Cause Notice nor in the Order-in-Original. Applicant submit that three grounds alleged in the notice rejected by adjudicating authority was :- (a) Whether the goods are required to be exported directly from the factory of manufacture or any other place. (b) Whether the Cenvat reversed is duty under Notification No. 19/2004-C.E. (N.T.) for rebate. (c) Whether the duty was paid under Rule 3(4) of CCR or under Rule 8 of the Central Excise Rules, 2002. However Commissioner (Appeals) rejected the appeal on totally different groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent period where an abatement of 2.5% was extended at the time of payment of duty. Applicant submits that abatement which is effective from 13-11-2007 is not applicable for the issue in hand. Further the Applicant paid the duties on transaction value in terms of Rule 18 of the Central Excise Rules, 2002 under the prescribed Central Excise invoice and also shown said duty in ARE-1 while exporting the goods. Accordingly the rebate claims were filed. However, Respondent went on narrating the story of capital goods credit scheme as to how the said rule was introduced and amended from time to time which is not relevant for the issue in hand. Applicant submits that they have paid the duty under Rule 18 of the Central Excise Rules, 2002 on the transaction value at the time of export without any reference to the amount of Cenvat credit availed. Accordingly the rebate claims were filed along with proof of export documents. The Applicant submits that for export under claim of rebate under Rule 18 of the Central Excise Rules, 2002, provisions of Rule 3(5) of CCR, 2004 cannot be applied. Without prejudice to our contention Rule 3(6) of CCR, 2004 itself provides that the amount pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Customs by a General or Special order. (b) the excisable goods shall be exported within 6 months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow; (c) . (d) . (e) . (f) . (g) . Respondent erred in relying upon condition 2(b) in rejecting the claim without appreciating the fact that the said condition is specifying the time period within which the goods cleared for export from the factory of manufacture has to be exported. This condition does not stipulate that it should be exported only from the factory of manufacture. Applicants submit that the Applicants case falls under 2(a) where it is stipulated that the goods to be exported directly from the factory or a warehouse, after payment of duty. In the instant case, Applicants are the registered manufacturers under Central Excise the said cylinders were exported directly from factory under supervision of Central Excise officers the appropriate duty has been paid under Central Excise invoice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer will be entitled for rebate under Rule 12(1)(a) of the Central Excise Rules. He is however put to disadvantage if he opts for export under bond procedure. The exports under claim of rebate and export under bond should be at parity, since, intention of both the procedures are to make duty incidence nil . It is also an established principle that rules should be interpreted in a manner, which do not render them redundant. It is clear from the above C.B.E.C. clarification that rebate cannot be denied even if the inputs are exported by any person other than the manufacturer. Applicants submit that the circular issued by the Board is binding on the adjudicating authority is required to be followed. The department cannot argue contrary to the board circular even if the same is inconsistent with the statutory provisions as held by the Apex Court in the case of : ● Paper Products Ltd. v. C.C.E. - 1999 (112) E.L.T. 765 (S.C.) ● Ranade Micronutrients Ltd. v. C.C.E. - 1996 (87) E.L.T. 19 (S.C.). Therefore, the order of the Respondent passed with total disregard to the Board circulars which is binding on the adjudicating authority, is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were binding on the Commissioner (Appeals) : ● Order 18/09 dated 21-1-2009 in the matter of C.C.E., Raigad v. Sterlite Industries (I) Ltd. ● Order 326/10 dated 18-2-2010 in the matter of C.C.E., Raigad v. Ispat Industries Ltd., Raigad. 5. Personal hearing held on 24-8-2011 was attended by Shri P.K. Shetty, Advocate, and Shri D.W. Deshpande, G.M. Indirect Tax on behalf of the applicants, who re-iterated grounds of Revision Application and impressed upon that Issue is settled by Bombay High Court in the case of M/s. Micro Ink, Ispat Industries wherein GOI Orders were upheld. 6. Government notes that the case matter under revision involves rebate claim on exported used aluminium engraved (printing) cylinders after payment of duty under (discharged under) Rule 3(5) of Cenvat Credit Rules, 2004 on the (claimed) transaction value . In background of above factual position the claimed rebate stands denied by the lower authorities. 7. Government observes that the issue whether reversal of equal amount of cenvat credit availed on inputs/capital goods under Rule 3(4) of Cenvat Credit Rules, 2002 is to be treated as payment of duty for the purpose of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were examined under Central Excise supervision and duty payment was also certified by Central Excise as per endorsements on the ARE-1s. The assessments/value of clearances were stated to be proper transaction value and due duty was calculated/paid as above. In respect of above, government finds force in applicant s submitted grounds at 4.4 to 4.6 above and is of the considered opinion that these issues are very well covered by GOI Order No. 18/09 dated 21-1-2009 in M/s. Sterlite Industries (I) Ltd., case wherein it has been held that such clearances of used capital goods from the factory of their uses which is other than the factory of manufacture of said capital goods when exported are eligible for rebate. 9. Government in this case matter is also of the same view as there is nothing on record to suggest that valuation of impugned used capital goods on said transaction value were challenged or reviewed by the jurisdiction authorities so as to establish that above value cannot be termed as fair for the purpose of assessments for levy and payments of due Central Excise duties. 10. Government, therefore, keeping in view that when exporter herein has submitted the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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