TMI Blog2013 (7) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. Shri Amit Gupta, ACCE, for the Department. [Order]. This revision application is filed by M/s. Welspun Corp. Ltd. (formerly known as Welspun Gujrat Stahl Rohren Ltd.) Welspun City, Village Varsamedi Taluka Anjar District Kutch against the order-in-appeal No. 8/2011/Commr(A)/CMC/Raj dated 27-4-2011 passed by Commissioner of Central Excise (Appeals), Rajkot with respect to order-in-original No. 593/2010-11, dated 3-12-2010 passed by Deputy Commissioner of Central Excise Hqs./Division Gandhidham. 2. Brief facts of the case are that the applicant filed two rebate claims involving duty of Rs. 2,39,09,690/- during the month of August 2007 with the lower authority. As a special scheme of Government of India the respondent availed benefit of refund by way of re-credit under Notification No. 39/2001-C.E., dated 31-7-2001 and also claimed the rebate of duty under Section 11B of the Central Excise Act, 1944 on the same duty of exported goods which appears to be double benefit, as the refund granted by way of self credit makes the goods exempted and no rebate can be allowed on exempted goods which makes the rebate claim ineligible under Rule 18 of the Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Excise Manual of Supplementary Instructions, 2005; that for the purpose of claiming rebate, export has to take place and mere clearing the goods from the factory does not entitle the respondent to claim the rebate; that the lower authority has considered the date of clearance from factory as the date of export which is not correct; that the citation of Hon ble CESTAT in the case of Dujodwala Products Ltd. v. CCE, Raigad reported in 2008 (223) E.L.T. 499 (Tri.-Mumbai) relied upon the lower authority is misplaced since the same was delivered on 15-5-2007 and the Notification No. 37/2007-C.E. (N.T.) was issued on 17-9-2007; that the lower authority also erred in applying the findings of the Hon ble High Court of Gujarat in SCA filed by the respondent. After considering the submission of parties. Commissioner (Appeals) set aside the impugned order-in-original and allowed the appeal of department in respect of rebate claim pertaining to goods exported after 17-9-2007. 3. 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 on the following grounds :- 3.1 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the right to claim rebate accrued to the applicants immediately on clearance of the goods from factory. The said vested right which accrued to the applicants was deferred till completion of export which cannot be denied by the Department by taking shelter of amendment of the said Notification as the same was not in existence at the time of clearance of the goods from the factory. In the following cases, it has been held that vested right accrued to the assessee and deferred at one point, cannot be taken away subsequently by inserting any condition. (a) C.C.Ex. v. Cotspin Ltd. - 2004 (165) E.L.T. 312 (T); (b) Eicher Motors Ltd. v. Union of India - 1999 (106) E.L.T. 3 (S.C.); (c) Raso Ltd. v. Union of India - 2004 (176) E.L.T. 101 (Cal.) 3.5 The applicants say and submit that the said notification was amended vide Notification No. 37/2007 dated 17-9-2007. The amended Notification does not have retrospective effect as laid down by the Hon ble Gujarat High Court and in the applicants own case reported in 2010 (254) E.L.T. 551, which has been affirmed by the Hon ble Supreme Court reported in 2010 (256) E.L.T. 161 (S.C.). The applicants say and submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny manner, any substantive or vested rights of the applicants. 3.10 In the above premises, the applicants most respectfully pray as under :- To quash and set aside the impugned order-in-appeal No. 81/2011/COMMR(A)/CMC/RAJ dated 27-4-2011 allowing the Department appeals to the extent of setting aside the order-in-original No. 593/2010-11 dated 3-12-2010 passed by the Deputy Commissioner of Central Excise. 4. Personal hearing scheduled in this case on 19-4-2012 was attended by Shri Paras Jain, Vice President (Taxation), Shri Tarun Gulati and Shri Pearl Kumar, Advocates on behalf of the applicant who reiterated the grounds of revision application. Shri Amit Gupta ACCE, Gandhidham Rajkot Central Excise attended hearing on behalf of respondent department who prayed to uphold the impugned order-in-appeal. 5. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 6. On perusal of records, Government observes that initially the original authority sanctioned the rebate claim of Rs. 2,25,35,758/- and allowed re-credit of Rs. 13,73,922/- in the PLA account of the applicant. Commissioner Central Excise reviewed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), dated 17-9-2007 and condition 2(h) was added in the said notification. The said condition 2(h) is as under :- (h) that in case of export of goods which are manufactured by a manufacturer availing the notifications of the Government of India in the Ministry of Finance (Department of Revenue) No. 32/99-Central Excise, dated 8th July, 1999 [G.S.R. 508(E), dated the 8th July, 1999] or No. 33/99-Central Excise, dated 8th July, 1999 [G.S.R. 509(E), dated the 8th July, 1999] or No. 39/99-Central Excise, dated 31st July, 2001 [G.S.R. 565(E), dated the 31st July, 2001] or notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 56/2002-Central Excise, dated 14th November, 2002 [G.S.R. 764(E), dated 14th November, 2002] or No. 57/2002-Central Excise, dated 14th November, 2002 [G.S.R. 765(E), dated 14th November, 2002] or notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 56/2003-Central Excise, dated 25th June, 2003 [G.S.R. 513(E), dated 25th June, 2003] or 71/2003-Central Excise, dated the 9th September, 2003 [G.S.R. 717(E), dated the 9th September, 2003] or No. 20/2007-Cent ..... 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