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TMI Blog2014 (11) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... /- and Rs. 12,38,169/- for the refund of Customs duties paid by their 100% EOU (PPI-EOU), on finished goods during the period of debonding, as the said finished goods (duty paid) were exported as per the following details. (i) During the process of debonding, stocks of finished goods were ascertained as at the close of 13-2-2008. (ii) Valuation of the aforesaid ascertained goods was done on 15-2-2008. (iii) Duty for the aforesaid goods was paid on 15-2-2008. (iv) After debonding, the goods covered by this Refund claim were exported under Bond and the original documents, in respect of the said goods, were submitted along with the proof of exports. (v) PPIL-EOU, vide letter dated 19-2-2008 have informed the Range Superintendent that they would be exporting finished goods lying in stock as on 13-2-2008 and also would be claiming refund of duty paid on such goods exported subsequently. 2.2 The claimants have submitted the following documents : (i) Worksheet showing product-wise details of quantity and Refund of duty claimed vis-à-vis product-w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed appeal before Commissioner (Appeals). It is contended in the appeals filed by the Revenue that no duty was paid at the time of export as is clear from the ARE-1s. Further the duty shown to be payable in the ARE-1s is @ 16% and not at the rate of duties of customs at which the assessee had paid the duty at the time of debonding vide challans. It is further contended that the duty paid by the assessee related to debonding and the refund of the same could not be granted on the basis of export. Commissioner (Appeals) after considering all the submissions, allowed the departmental (appeals) and set aside impugned order-in-original. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed these two revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 Since issue involved in the Revenue appeal was of refund under Section 11B of Central Excise Act, 1944, the applicant filed appeal and stay petition and appeal before the Hon'ble CESTAT, Mumbai on 17-9-2010. The Hon'ble Tribunal listed the said appeal for hearing on 12-10-2011 in respect of maintainability as the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by subsequently exporting the goods". At the outset the Commissioner (Appeals) erred on the basic facts that the Customs duty paid on the imported goods is sought to be refunded. The Applicant submit that the goods which were exported were not imported goods but manufactured by the Applicant in their EOU unit. Applicant submits that the duty was paid on the finished products manufactured and were lying in stock as on 13-2-2008 at the time of de-bonding of 100% EOU. As per the guidelines given under Appendix 14-1-L under Foreign Trade Policy, excise duty is required to be paid on the goods manufactured and lying in stock on the date of debonding. This basic fact has been misunderstood by the Commissioner (Appeals) when he passed the order presuming that the duty which was refunded was in relation to imported goods on which customs duty has been paid at the time of de-bonding. This misconception of basic fact by Commissioner (Appeals) in passing the order clearly shows the non-application of mind. The Applicant further submits that in the instant case the issue of payment of duty on imported goods was neither before the original authority nor the Revenue had taken that plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned as rebate under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of Central Excise Rules, 2002. The Applicant submits that goods manufactured in an 100% EOU are exempted from whole of duty of excise leviable thereon under Section 3 of Central Excise Act, 1944 vide Notification No. 24/2003-C.E., dated 31-3-2003. The said Notification further provides that the exemption is not applicable to such goods if brought to any other place in India i.e. DTA sale. In respect of exports the goods are cleared under B-17 Bond only. In view of this factual position the finding of the Commissioner (Appeals) about applicability of rebate is entirely unfounded and unsustainable and hence on this ground too the impugned order is liable to be set aside. The Applicant further submits that in fact the Revenue in their grounds of appeal at Para 1(iv) had claimed that on export of goods, rebate is allowed of duty of excise paid thereon. Applicant submits that it is a general statement and not applicable to EOU as stated in above para. However with this rebate clause the conclusion drawn by the Revenue i.e. there is no nexus between the amount claimed as refund and export of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versight. However we confirm that we have filed only two revision applications against the said order on 20-10-2010. 5.2 We have not filed Revision application on 20-10-2010 against Order-in-Original No. Raigad/KPL/RC/15/2008-09, dated 16-3-2009-Rs. 11.50 Lacs & Raigad/KPL/RC/16/2008-09, dated 16-3-2009 - Rs. 12.38 Lacs arising out of Order-in-Appeal No. YDB/401-404/RGD/10, dated 20-7-2010. However we have filed an appeal before CESTAT under the bona fide belief that the same is a refund and hence the jurisdiction is before CESTAT. 5.3 The Hon'ble CESTAT heard the matter on 12-10-2011 wherein the said appeals were dismissed as not maintainable as Tribunal has no jurisdiction to hear the appeal because it relates to rebate of duty paid on goods exported. Tribunal however granted liberty to appellants to approach appropriate forum. Therefore we have filed two Revision applications on 7-12-2011, consequent to the order of CESTAT Nos. A/921-924/2011/EB/C-II, dated 12-10-2011. These revision applications were allotted RA Application No. 195/1217-1218/11-RA-CX. 5.4 Hearing on 8th August, 2013 was granted for this Revision Applications No. 195/1217-1218/11-RA-CX which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court of Bombay in the case of M/s. EPCOS India Pvt. Ltd. in W.P. No. 10102/2011 vide order dated 25-4-2012 [2013 (290) E.L.T. 364 (Bom.)], have held that period consumed for perusing appeal bona fidely before wrong forum is to be excluded in terms of Section 14 of Limitation Act, 1963 for the purpose of reckoning time-limit of filing revision application under Section 35EE of Central Excise Act, 1944. The ratio of above said judgments is squarely applicable to this case. Government finds that keeping in view the above judgments, the delay is of only 17 days which has occurred due to valid reasons and same is within condonable limit. Hence, Government condones the said delay and takes up revision application for decision on merit. 8. Government notes that in this case the applicant, a 100% EOU, has exported the goods under bond without payment of duty in terms of Rule 19 of Central Excise Rules, 2002. Applicant has himself admitted that being 100% EOU they were not entitled to rebate claim under Rule 18 of Central Excise Rules, 2002. 8.1 In order to understand the issue, it is necessary to go through the provision of Notification No. 24/2003-C.E., dated 31-3-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter claim rebate of duty paid." Therefore in view of provisions of sub-section (1A) of Section 5A, the applicant rightly contended that 100% EOU is not entitled for rebate claim under Rule 18 of Central Excise Rules, 2002. 9. Government notes that in this case applicant has exported goods under bond without payment of duty. The duty paid during debonding of goods was for DTA clearance of goods and not for export of goods. Since goods were exported under bond under Rule 19, the applicant has become disentitled for the benefit under Rule 18 as no duty was paid on clearance of goods for export. The refund of custom duties paid at the time of de-bonding the goods by 100% EOU is not covered under the provisions of Rule 18 of Central Excise Rules, 2002. As such the contention of applicant for grant of rebate claim of such duty is not acceptable. Government finds support from the observations of Hon'ble Supreme Court in the case of M/s. ITC Ltd. v. CCE reported as 2004 (171) E.L.T. 433 (S.C.), and M/s. Paper Products v. CCE reported as 1999 (112) E.L.T. 765 (S.C.) that the simple and plain meaning of the wordings of statute are to be strictly adhered to. 10. In view of above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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