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TMI Blog2012 (12) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner, Central Excise, Taloja Division, Belapur Commissionerate. 2. Briefly stated facts of the case are that the applicants have filed rebate claim of duty paid on excisable goods used in the manufacture of goods exported under three ARE-2 bearing number 1 dated 9-9-2008, 2 dated 29-9-2008 and 4 dated 24-10-2008 under provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 as amended, read with Rule 18 of Central Excise Rules, 2002 for an amount of Rs. 4,06,306/-. After due verification, the Assistant Commissioner granted rebate to the extent of Rs. 4,00,944/-. 3. Being aggrieved by the said order-in-original, the department filed appeal before Commissioner of Central Excise (Appeals) on the following gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing grounds : 4.1 That the adjudicating authority after due consideration of all the facts and the eligibility of rebate had allowed the said rebate claim of Rs. 4,00,944/- against the claim of Rs. 4,06,306/-. 4.2 That since the applicants were not a regular exporter of goods and for the first time made a consignment for export, hence by mistake the Cenvat credit availed on such inputs which were gone into the manufacture of final product were not reversed at the time of clearance of the goods for export against the claim for rebate of duty. 4.3 That applicants realized their mistake, when it was pointed out to them only by way of filing an appeal by the department against the said 'order- in-original' sanctioning rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein the issue involved was eligibility to the exemption under Notification No. 69/86-C.E., dated 10-2-1986. The said notification stipulated that in availing the exemption no credit of the duty paid on goods should have taken and a circular was issued by the Board, wherein, it has been stipulated that if the credit has been availed on the inputs which were used in the manufacture of dutiable final products and also final products which are exempt from duty and it is not reasonably possible to segregate input utilized in manufacture of the dutiable final products from the final products which are exempt from duty, in such a case, the manufacturer may take credit of duty paid on all the inputs used in the manufacture of final products o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant exported the goods under claim of rebate of duty paid on materials used in the manufacture of exported goods and filed rebate claim which was sanctioned by original authority. The department on subsequent verification found that the applicant exporter had in fact availed Cenvat credit of duty on some of the raw-materials so used in violation of applicable provisions of law and procedure. Therefore, an appeal against the above order-in-original was preferred before the Commissioner of Central Excise (Appeals), Mumbai-III. The manufacturer exporter accepted the same as mistake and reversed the said availed credit of Rs. 2,35,845/- out of total granted rebate claim of Rs. 4,00,944/-. The Commissioner (Appeals), however, did not accept t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, reported in 2004 (174) E.L.T. 422 (All.), wherein it is held that reversal of Modvat credit amounts to non-taking of credit on the inputs. Hence, the benefit has to be given of the notification granting exemption/rate of duty on the final products since the reversal of credit on the input was done at the Tribunal's stage. While arriving at this conclusion, the Allahabad High Court has referred to various judgments under which such reversal was made subsequently and still the benefit was given to the assessee." "8. Since, the Tribunal has correctly applied the law................... we are of the view that no question law ............................. Appeals dismissed." 9. In view of above and also taking a note th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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