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TMI Blog2014 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... t was found that rebate had been sanctioned in excess of ARE-1 value as FOB value was less than ARE-1 value. The applicant were alleged to have taken excess rebate of Rs. 3,76,111/- which was erroneously sanctioned to them in cash. Recovery proceedings alongwith interest were taken. Accordingly a show cause notice was issued to the applicant for recovery under section 11A of the Central Excise Act, 1944 along with interest under Section 11AB ibid. Penalty under Rule 25 of the Central Excise Rules, 2002 was also proposed. The adjudicating authority confirmed the demand and interest but refrained from imposing any penalty. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who upheld t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice the duty had been paid on the basis of Section 4 Assessable Value. There was variation between ARE-I value and FOB value and on this basis the refund was considered to be erroneous. There is no such authority which provided that where the Section 4 assessable value is higher than the FOB value or FOB value is higher than ARE-1 value, then rebate of the duty relatable to difference in value would not be allowable. 4.3 The Commissioner (Appeals) ought not have gone by the facts of cases earlier disposed of by him vide orders-in-appeal No. 428-429 where the basis were that of the amounts being attributable to transportation and insurance charges. In the instant case the basis for adverse order of the Assistant Commissioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard. Government observes that Section 11A included within itself the power to recover the erroneously granted refunds as has been held by Hon'ble Supreme Court in the case of Jain. Sudh Vanaspati Ltd. v. UOI reported in 1996 (86) E.L.T. 460 (S.C.). Similar view has been taken by Hon'ble CESTAT, Mumbai in the case of ITI Ltd. reported in 2008 (228) (E.L.T.) 78 (T- Mum). Bombay High Court in the case of M/s. Indian Dyestuff Ind. Ltd. v. UOI - 2003 (161) E.L.T. 12 (Bom) has held that Section 11A is an independent substantive provision and it is a complete code in itself for realization of erroneously refunded duty. There is no precondition for reviewing the order under Section 35E before issuing show cause notice under section 11A of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice erroneously in cash and is now recoverable under section 11A of the Act alongwith interest under section 11AB of the Act as stipulated in the cited show cause notice."
10. Government observes that duty paid on portion of value which does not form part of transaction value was rightly held as not rebatable under Rule 18 of Central Excise Rules, 2002 as the rebate is admissible in respect of duty paid on value of exported goods determined under Section 4 of Central Excise Act, 1944. In view of above, Government finds no infirmity in the impugned order-in-appeal and therefore upholds the same.
11. The revision application is rejected being devoid of merit.
12. So ordered. X X X X Extracts X X X X X X X X Extracts X X X X
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