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TMI Blog2013 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2004-C.E. and Notification No. 30/2004-C.E. both dated 9-7-2004 simultaneously. Notification No. 29/2004-C.E., dated 9-7-2004 grants partial exemption from Central Excise duty on the final product and Notification No. 30/2004-C.E., dated 9-7-2004 grants full exemption from Central Excise duty on final product and the benefits of both the said notifications can be availed simultaneously. The applicants have exported their final products under the claims of rebate under Rule 18 of the Central Excise Rules, 2002 (the Rules) read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 by availing benefits under Notification No. 29/2004-C.E., dated 9-7-2004 and have filed their rebate claims of duty paid on the final products. In the course of adjudication proceedings, the adjudicating authority has rejected the rebate claims as it was not clear whether exported goods were manufactured from the inputs on which Cenvat credit was availed. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who rejected the same on the ground that party has not maintained separate accounts in respect of both types of goods. 4. Being aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taneously. 4.2 The Commissioner (Appeals) failed to appreciate the primary submission of the applicant that they were availing credit at the end of the month based on consumption of inputs that were actually used in the manufacture of goods cleared on payment of duty under Notification No. 29/2004-C.E., dated 9-7-2004, whether for export or for domestic sale on payment of duty. The applicant were maintaining sufficient record and calculations showing consumption of inputs and their quantity in the manufacture of final products that were cleared by the applicant on payment of duty on the strength of Notification No. 29/2004-C.E., dated 9-7-2004. 4.3 The Commissioner (Appeals) erred in not appreciating that the applicant have not availed benefit of both the Notification No. 29/2004-C.E., dated 9-7-2004 and Notification No. 30/2004-C.E., dated 9-7-2004 simultaneously against a particular clearance/shipment of goods. On the other hand, the applicant have availed benefit of Notification No. 29/2004-C.E., dated 9-7-2004 only in respect of export clearances under claim for rebate of duty paid on resultant export goods. Wherever the applicant have cleared the finished goods in the domest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., dated 9-7-2004 in respect of export clearances. The conclusion drawn by the lower authorities is based on assumptions and presumptions. It is a settled law that any order passed by an authority on the basis of surmises and conjectures, is not maintainable under law. 4.6 The Commissioner failed to appreciate that in respect of ARE-1 No. 40, dated 4-9-2008 and 41, dated 8-9-2008, the applicant have cleared the goods for export under DEPB scheme and without claiming any duty drawback. Further, in the concerned ARE-1, the applicant have declared that the goods were manufactured by availing facility of Cenvat credit. Since there is no bar on availment of Cenvat credit in respect of goods manufactured and cleared for export under DEPB scheme, the applicant have availed Cenvat credit and therefore, the applicant have correctly availed benefit of Notification No. 29/2004-C.E., dated 9-7-2004. Hence in any case, the Commissioner erred in rejecting the rebate claims of Rs. 1,21,002/- (in respect of ARE-1 No. 40) and Rs. 1,22,818/- (in respect of ARE-1 No. 41). 4.7 The Commissioner (Appeals) erred in not appreciating that both Notification No. 29/2004-C.E., dated 9-7-2004 and Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds of revision application. Nobody attended hearing on behalf of the respondent-department. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. Government observes the applicant exported the goods on payment of duty under the claim of rebate under Rule 18 of Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The applicant was clearing goods by availing exemption notification No. 29/2004-C.E. and 30/2004-C.E. simultaneously. The original authority observed that the applicant failed to draw clear distinction between two aforesaid notification inasmuch as they could not substantially prove that the goods exported have been manufactured out of goods on which the Cenvat credit has been availed. The original authority rejected the rebate claim on this ground. Commissioner (Appeals) upheld the impugned Order-in-Original. Now, applicant has filed this revision application on grounds mentioned in para (4) above. 8. Government observes that Commissioner (Appeals) has mainly held that although the applicant were free to avail both the exemption Notification Nos. 29/2004-C.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured and cleared on payment of duty. In case any subsequent verification reveals that such proportionate credit taken is incorrect, the penal provisions as prescribed under the law will be taken against such assessees. From perusal of above two circulars, it can be seen that Circular No. 795/28/2004-CX., dated 28-7-2004 provides for simultaneous availment of Notification Nos. 29/2004-C.E. and 30/2004-C.E. subject to condition of maintenance of separate books of account of goods availing Notification No. 29/04-C.E. and for goods availing Notification No. 30/2004-C.E. In the Circular No. 845/3/2007-CX., dated 1-2-2007, the conditions of maintenance of separate account has been dispensed with and instead the manufacture was advised to take proportionate input credit at the end of month on inputs used in the manufacture of finished goods cleared by them on payment of duty. As such, the applicant was not required to maintain separate accounts for goods availing of Notification No. 29/2004-C.E. and goods availing of Notification No. 30/2004-C.E. Under such circumstances, Government finds that rejection of applicant's rebate claim for the reasons of non-maintenance of separate acc ..... 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