TMI Blog2011 (3) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgment P.C. :- 1. The Commissioner of Central Excise, Raigad is aggrieved by the order passed by the Jt. Secretary to the Government of India dated 20/1/2010 whereby the Revision Application filed by the Commissioner is dismissed and the order passed by the Commissioner, Central Excise (A) is upheld. As a result whereof, the respondent No.1 ('the assessee' for short) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is entitled to rebate of duty paid on export of capital goods by reversing the input credit. Challenging the aforesaid order, the present petition is filed. 4. The case of the revenue in this Writ Petition is firstly, that the reversal of credit equal to the amount of duty cannot be said to be payment of duty under Rule 18 of the Central Excise Rules, 2002 and consequently the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/1996 construing similar provisions contained in Rule 57F of the Central Excise Rules, 1944 held that where the inputs are cleared on payment of duty by debiting RG-23A Part II as provided under erstwhile Rule 57F4 of the Central Excise Rules, 1944, the manufacturer would be entitled to rebate under Rule 12 (1)(a) of the Central Excise, 1944. Rule 57F in the 1944 Rules is pari materia to Rule 3(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital goods are 'removed as such' as provided under Rule 3(5) of 2004 Rules. There is some dispute as to whether the capital goods imported by the assessee were put to use before they were exported. Assuming that the said capital goods were used by the assessee before export, it would still be export of the capital goods imported by the assessee. In other words, the duty paid capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not the case of the revenue that on account of the user, the character of the capital goods has changed. Therefore, where duty paid inputs / capital goods brought into the factory are subsequently cleared for export, then Rule 3(5) of 2004 Rules would apply. Hence, the Joint Secretary to the Government of India was justified in holding that user of the capital goods before export does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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