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TMI Blog2013 (6) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner (Rebate), Central Excise, Raigad, sanctioned the said claim vide Order-in-Original. The Department preferred appeals against the said Orders-in-Original on the grounds that as per the Notification No. 4/2009-C.E., dated 24-2-2009, the effective rate of Central Excise duty was reduced from 10% to 8%. It has been observed that the manufacturer had cleared the exported goods by paying the Central Excise duty @10% instead of 8% and rebate had been sanctioned as claimed. However, they were liable to pay Central Excise duty @ 8% only. Commissioner (Appeals) rejected the appeals filed by the Department. 3. Being aggrieved by the impugned Order-in-Appeal, the applicant Commissioner filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 The Commissioner (Appeals) has erred in its findings inasmuch as : (i) The Commissioner (Appeals) accepted the ignorance on part of the assessee and jurisdictional excise officer. (ii) The money extra paid on account of reduction of rate of duty does not to be treated as duty but the "amount" an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handra Das, Officer (Marketing) appeared for hearing on behalf of the respondent No. 1 and Shri Neerav Mainkar, Advocate appeared for hearing for respondent No. 2. Respondents stated that Orders-in-Appeal being legal and proper, may be upheld. Nobody appeared on behalf of the applicant Department. 6. Government has carefully gone through the relevant case records and perused the impugned Orders-in-Original and Orders-in-Appeal. 7. Government observes that the respondents rebate claims were initially sanctioned by the original authority. The applicant Department filed appeals before Commissioner (Appeals) on the ground that the applicant cleared the exported goods by payment of 10% duty instead of 8% duty payable and received rebate claim of duty paid @10%. As such, excess rebate claims were sanctioned by the original authority to the extent of excess paid duty. Commissioner (Appeals) rejected Department's appeals. Now, the applicant Department has filed these revision applications on grounds mentioned in para (3) above. 8. The appellate authority has held that Department has not reviewed the assessment done by excise authority at the time of clearance of goods on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued until and unless the order under Section 47 had been first revised under Section 130." 8.2 While referring to the above mentioned case law in the case of Collector of Central Excise, Bhubaneswar v. Re-Rolling Mills [1997 (94) E.L.T. 8 (S.C.)], the Hon'ble Supreme Court has held as under : "The learned counsel for the parties do not dispute that this appeal is covered by the decision of this court in Union of India & Ors. v. Jain Shudh Vanaspati Ltd. & Anr. - 1996 (86) E.L.T. 460 (S.C.) = (1996) 10 SCC 520. In that case the court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of the Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed with no order as to costs." 8.3 In ITI Ltd. v. Commissioner of Customs, ACC, Mumbai [2008 (228) E.L.T. 78 (Tri.-Mumbai)] it has been held : "11. We hold that the issue of show cause notice under Section 28 of the Customs Act, 1962 for recovery of the erroneously granted refund is sufficient to meet the requirement of law. Following the ratio of the Hon'ble Supreme Court judgments in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is required to prepare five copies of application in the Form ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N.T.), dated 6-9-2004 (see Part 7). The goods shall be assessed to duty in the same manner as the goods for home consumption. The classification and rate of duty should be in terms of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. The value shall be the "transaction value" and should conform to Section 4 or Section 4A, as the case may be, of the Central Excise Act, 1944. It is clarified that this value may be less than, equal to or more than the FOB value indicated by the exporter on the Shipping Bill." The plain reading of said para, reveals that the export goods shall be assessed to duty in the same manner as the goods cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in Schedule of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. These C.B.E. & C. Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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