TMI Blog2013 (10) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is required to be returned to the respondent in the manner in which it was paid by him initially. - Therefore, the original authority is directed to allow re-credit in Cenvat credit account of said amount. - Decided partly in favour of assessee. - F. No. 195/8/2012-RA - 1303/2013-CX - Dated:- 10-10-2013 - Shri D.P. Singh, Joint Secretary Shri Mahendra Madhav Gokhale, Excise Officer, for the Assessee. ORDER This revision application is filed by the applicant M/s. Monomer Chemical Industries Pvt. Ltd., Plot No. 32, Chemical Zone, MIDC Industrial Area, Ambarnath (W)-421501, against the Order-in-Appeal No. YDB (185) TH 1/2011, dated 22-7-2011 passed by Commissioner of Central Excise (Appeals), Mumbai-I, with respect to Order-in-Original No. R-207/11-12, dated 21-4-2011 passed by the jurisdictional Deputy Commissioner (Appeals), Central Excise, Kalyan Division-IV, Central Excise Committee, Thane, Mumbai. 2. Brief facts of the case are that M/s. Monomer Chemical Industries Pvt. Ltd., Plot No. 32, Chemical Zone, MIDC Industrial Area, Ambarnath (W)-421501 are engaged in the manufacture of excisable goods falling under Chapter 32 of the Schedule to the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have cleared the goods for export on payment of duty through their Cenvat credit account under all the aforesaid four ARE-1s on 15-10-2010 i.e., the very same day on which the claimant s aforesaid manufacturing unit was converted into 100% EOU. Further, it appeared from Notification No. 24/2003-C.E., dated 31-2-2003 that the goods manufactured and cleared for export by 100% EOUs are fully and absolutely exempted from payment of duty and as per the provisions of Section 5A(1A) of the Central Excise Act, 1944, when the goods are absolutely exempted, the claimants are legally bound to avail the said exemption and have no option to clear the goods for export on payment of duty. Further, Rule 17 of the Central Excise Rules, 2002 lays down that the Cenvat credit can be utilized by the 100% EOUs only in respect of their DTA clearances on payment of duty. Therefore, it appeared that the claimants have exported the goods from their 100% EOU on payment of duty, when actually no such duty was legally required to be paid and in contravention of the aforesaid provision of Central Excise Act, 1944 and Central Excise Rules, 2002. As such, the amount claimed to have been paid as Central Excise Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, in the manufacture of such excisable goods. 4.3 On reading of the above relevant extract of the section it can be seen that the impugned section is applicable duty in a situation wherein the exemption has been granted absolutely. However, Not. No. 24/2003-C.E., dated 31-3-2003 lays down a condition for grant of exemption. The applicant would like to submit that the condition laid down in the proviso to the notification, supra. The relevant part of the notification, supra is reproduced here below : Provided that the exemption contained in this notification in respect of duty of excise leviable under Section 3 of said Central Excise Act shall not apply to such goods if brought to any other place in India. 4.4 The applicant would like to again reiterate that Section 5A(1A) is applicable only in situation wherein absolute exemption wherein non-conditions are prescribed. However, the Not. No. 24/2003-C.E., dated 31-3-2003 does not grant absolute exemption since a condition is prescribed. The applicant would like to state that the exemption granted by the Not. No. 24/2003-C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable in this case as held by lower authorities. 8.1 In order to understand the issue, it is necessary to go through the provision of Notification No. 24/2003-C.E., dated 31-3-2003 and Section 5A(1A) of Central Excise Act, 1944 which are extracted below : 8.2 Notification No. 24/2003-C.E., dated 31-3-2003 states as follows - In exercise of the powers conferred by sub-section (1) of Section 5A of Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby : (a) Exempts all excisable goods produced or manufactured in an export oriented undertaking from whole of duty of excise leviable thereon under Section 3 of Central Excise Act, 1944 (1 of 1944) and additional duty of excise leviable thereon under Section 3 of Additional Duty of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and additional duty of excise leviable ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant s contention that duties/taxes are not to be exported, Government notes that these are various schemes in operation which neutralize the effect of duty incident on the exported goods. Each scheme is governed by the conditions/limitations and procedures laid down in the notification. In this case the provisions of Section 5A(1A) of Central Excise Act, 1944 put embargo on payment of duty since goods were exempted from payment of whole of duty unconditionally. However, the unutilized Cenvat credit is permitted to be refunded under Rule 5 of Cenvat Credit Rules, 2004 and the said facility is not availed by applicant. 9. In view of above position, rebate claims are not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004. However Government observes that duty without any authority of law is to be treated as voluntary deposit made by applicant with Government which is required to be returned in the manner in which it was paid. Hon ble High Court of Punjab and Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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