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TMI Blog2012 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... redit Rules, 2004. On account of exportation of the goods manufactured by them they filed two rebate claims amounting to Rs. 2,22,156/- and Rs. 10,16,290/- respectively, which were sanctioned to them. 2.1 Later on it was considered that the applicants were a 100% EOU and all excisable goods produced or manufactured in an EOU is exempt from payment of whole of duty of Excise leviable thereon under Section 3 of the Central Excise Act, 1944, additional duty of excise leviable thereon under Section 3 of Additional Duties of Excise (Goods of Special Importance Act, 1957 (58 of 1957) and Additional Duty of excise levaible thereon under the Section 3 of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), provided that the exemption in respect of duty of excise leviable under Section 3 of the said Central Excise Act, shall not apply to such goods, if brought to any other place in India as per Notification No. 24/2003-C.E., dated 31-3-2003. As per the provision ibid, a 100% EOU is required to export the goods manufactured therein either under Bond or LUT whereas in the instant cases, the impugned goods were exported against payment of duty by debiting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired finality, otherwise, a direction or order would have been passed by Commissioner, Delhi-II, to file an application before Commissioner (Appeals) under Section 35EE(4) of the Central Excise Act. Therefore, an order which has acquired finality, within the framework of excise law, cannot be overruled by Additional Commissioner. 4.4 In view of the aforesaid legal provisions, the present Show Cause Notice C.No. CE-20/R-25/Welspring/36/Div-V/07/5220, dated 25-3-2008, issued by Joint Commissioner, Delhi-II, seeking to deny and demand back the already sanctioned rebate duty of Rs. 10,16,290/- was without any authority of law because the Order-in-Original No. 62/07-08, dated 24-5-2007, had already been accepted by Commissioner, Delhi-II, to be legal and proper; and had already acquired finality. 4.5 However, the remedy before the authorities to challenge the said Order-in- Original, dated 4-5-2007, was by way of reviewing the same by the jurisdictional Commissioner and filing of application under Section 35EE(4) of the Central Excise Act there-against before Commissioner (Appeals). As per CBEC Circular No. 423/56/98-Cx., dated 22-9-1998., proceedings should be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government has issued Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004, granting rebate of full duty paid on the export goods. The said notification does not lay down any condition to the effect that rebate shall not be admissible if the goods are exported by 100% EOU on payment of duty. The only requirement of the said notification is that the goods must have been exported on payment of duty. The source of duty payment is immaterial. Therefore, the rebate claimed cannot be denied. 5. Personal hearing scheduled in this case on 27-6-2012 was attended by Shri S.S. Dabas, Advocate on behalf of the respondent who reiterated the grounds of revision application. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of case records, Government observes that applicant a 100% EOU, had exported the goods on payment of duty under claim of rebate under Rule 18 of CER, 2002. The adjudicating authority rejected all the claims on the grounds that applicant being 100% EOU enjoyed unconditional exemption under Notifi. No. 24/03-C.E., dated 31-3-2003 and had no option to pay duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said notification is conditional as the duty is payable on DTA clearances. Government notes that there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear all the goods manufactured by them for exports as per the EOU scheme. Such units can clear the goods in DTA with prior permission of Development Commissioner. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A are applicable and no duty was required to be paid on such exported goods. As such rebate claim is not admissible in terms of Rule 18 of Central Excise Rule, 2002 read with Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004. Government finds support from the observations of Hon'ble Supreme Court in the cases 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. CBEC has also clarified vide letter F.No. 209/26/09-Cx-6, dated 23-4-2010 (Para 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs. The instruction of Board are binding on the departmental authorities as held by Hon'ble Supreme Court in the case of Dhiren Chemical Industries Ltd. v. CCE, Vadodara - 2002 (139) E.L.T. 3 (S.C.). 10. Applicant has contended that department has not reviewed the initial Order-in-Original under which rebate claims were sanctioned. It is not legally permissible for the department to initiate proceedings under Section 11A of Central Excise Act, 1944 without reviewing the Order-in-Original under Section 35E of Central Excise Act, 1944. In this regard it is relevant to rely on the judgment of Hon'ble High Court of Bombay in the case of M/s. Indian Dye Stuff Industries Ltd. v. UOI - 2003 (161) E.L.T. 12 (Bom.). In the said judgment it is held that Section 11A of Central Excise Act, 1944 being an independent substantive provision, the appellate proceedings are not required to be initiated before issuing Show Cause Notice under Section 11A if there are grounds existing such as short levy, short recovery or erroneous refund, etc. Section 11A is an independent substantive provision and it is a complete code in itself for realization of excise duty erroneously refunded. There are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, 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 cases of Re-Rolling Mills and Jain Shudh Vanaspati cited supra and the Tribunal's order in the case of Roofit Industries Ltd., we hold that the proceedings initiated under Section 28 of the Customs Act, 1962, are not vitiated on the ground of non-filing of appeals by the Revenue against the orders No. 72, dated 1-3-1994 and 99, dated 11-3-1994 passed by the Assistant Commissioner. Therefore, the demand of erroneous refunds under Section 28 of the Customs Act, 1962 is sustainable." 10.4 In Roofit Industries Ltd. v. Commissioner of Central Excise, Chennai - 2005 (191) E.L.T. 635 (Tri.-Chennai) it has been held as follows : " 4............We follow this precedent and apply the ratio of the Supreme Court's decision in Jain Shudh Vanaspati (Supra) to the facts of the instant case and, accordingly, reject the appellants' contention that a Show Cause Notice dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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