TMI Blog2013 (3) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT ) In view of above circumstances, the impugned order-in-appeal is modified to the above extent and revision application is allowed. - F. No. 195/790/2009-RA - 999/2011-CX - Dated:- 5-8-2011 - Shri D.P. Singh, J. Shri R.K. Sharma, Senior Counsel, Dharmender Singh and Ranjeet Kumar Singh, Consultants, for the Assessee. None, for the Department. ORDER This revision application is filed by M/s. Biyani Alloys Pvt. Ltd., Plot No. C/25, MIDC Jejuri, Tal. Purandhar, Distt. Pune, against the order-in-appeal No. PIII/VM/128-129/09, dated 30-7-2008 passed by Commissioner of Central Excise (Appeals), Pune-III. 2. Brief facts of the case are that applicant had filed rebate claims in respect of goods exported vide ARE-1 9/26-7-2007, 10/3-8-2007 and 12/20-8-2007. During the scrutiny of claims it was observed that applicant had procured raw materials in terms of Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 and availed the facility of procurement of excisable goods duty free to be used in the manufacture of export goods. As per the conditions/safeguards laid down in said notification, the export of goods are to be made in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Right from the beginning they are pointing out that the goods which they have manufactured and exported on payment of duty under claim of rebate are not manufactured only out of the inputs procured without payment of duty under Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 and that in the manufacture of the said goods, the substantial quantity of inputs procured on payment of duty are also used and hence the Explanation-II given under Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 will not be applicable to the said goods and hence their clearance on payment of duty under claim of rebate can t be held as wrong. Unfortunately, the Commissioner, Central Excise (Appeals), Pune-III has totally ignored their abovesaid plea and on this ground also the order-in-appeal passed by him is bad in law, being a non-speaking order. 4.3 The applicants point out that plain reading of the Explanation-II to Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 clearly reveals that the same will apply only when the exported goods are manufactured wholly out of the inputs procured without payment of duty under the Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001. 4.4 The applicants further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash rebate than actually due on the quantity of export - 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 - Rule relating to rebate makes no distinction based on the source or manner of payment of duty. The applicants also relied upon an another the judgment made by Hon ble Tribunal of Mumbai in the matter of M/s. Gayatri Laboratories Ltd. v. Commissioner of Central Excise, Mumbai reported under 2006 (194) E.L.T. 73 (Tri.-Mum) vide the above order the Hon ble Tribunal rebate of export - Duty paid at the rate of 20% ad valorem for export goods without claiming benefit of Not. No. 6/94-C.E. which provide effective rate of duty of 10% ad valorem - No objection raised by Revenue at the time of paying higher rate of 20% - If assessee chose to clear their export by not availing benefit of notification, they cannot be compelled to do so - Rebate claim to the extent of duty paid by them, is available - Same cannot be cut short on ground that less duty should have been paid in terms of notification. 4.6.2 Applicant rely upon the Board Circular No. 510/06/2000-CX., dated 3-2-2000 clarifies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as the goods manufactured under Not. No. 43/2001-C.E. (N.T.) are required to be exported under bond under Rule 19(1), that there is no violation of Rule 18 of Central Excise Rules, 2002 for which rebate can be denied and for violation of conditions of Not. No. 43/2001-C.E. (N.T.), the benefit under said notification can be denied. 9. The relevant provisions of Rules and Notifications are as under : 9.1 Rule 19 of Central Excise Rules, 2002 Rule 19. Export without payment of duty - (1) Any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner. (3) The export under sub-rule (1) or sub-rule (2) shall be subject to such conditions, safeguards and procedure as may be specified by notification by the Board. 9.2 Not. No. 43/2001-C.E. (N.T.), dated 26-6-2001 as amended. The said notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26-6-2001 along with amendment vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004, and as per Explanation II of said notification such goods shall be exported in terms of sub-rule (1) of Rule 19 of the Central Excise Rules i.e. only without payment of duty. In case such rebates are allowed, it will amount to an amalgamation of two different Rules contravening each other s condition which is not envisaged in the rules. Further it has also been clarified in C.B.E. C. Circular No. 792/25/2004-CX., dated 2-6-2004 that goods manufactured using materials received without payment of duty under Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 as amended, issued under Rule 19(3) read with Rule 19(2), as required to be exported under Rule 19(1) by observing the condition, safeguards and procedures specified under Rule 19(3) of Central Excise Rules, 2002. 10.2 So far as following the above statute by the original authority is concerned Government is of considered opinion that it is a settled law that strict and plain wordings of statute are to be adhered to as impressed upon and spell out by Hon ble Supreme Court in its judgment ITC Ltd. v. CCE, 2004 (171) E.L.T. 433 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73/2009-C.E., dated 27-3-2009 in the case of CCE, Bangalore-II v. M/s. Texport Syndicate India Ltd. (w.r.t O-I-A No. 89/05 dated 2-8-2005 passed by Commissioner of Central Excise (Appeals), Bangalore and GOI Order No. 379/10-CX., dated 23-3-2010 File No. 195/72/08 in the case of M/s. TVS Srichakra Ltd., Madurai (w.r.t. O-I-A No. 185/2006 dated 26-10-2006 passed by CCE (Appeals) Madurai). In the said order it was held that rebate of duty is not admissible under Rule 18 of CER 2002, when export goods are manufactured out of both, duty free raw materials procured under Not. No. 43/2001-C.E. (N.T.), as well as duty paid raw material since such goods are required to be exported under bond in terms of Rule 19(1) of Central Excise Rules, 2002 after the amendment of Not. No. 43/2001-C.E. (N.T.) vide Not. No. 10/2004-C.E. (N.T.), dated 2-6-2004. Government therefore, observes that Commissioner (Appeals) has erred in extending benefit of rebate of duty under Rule 18 ibid in this case. However, the portion of impugned order-in-appeal setting aside the penalty is upheld. 14. Hon ble Punjab and Haryana High Court at Chandigarh vide order dated 11-9-2008 in CWP No. 2235 3358/2007 in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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