TMI Blog2012 (6) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is in conformity with the views of lower authority and Commissioner (Appeals) that because the duties paid at the time of de-bonding were duties of nature of Customs Duty including CVD, the applicant could have made a Drawback claim under Section 75 of the Customs Act, 1962 in terms of relevant Customs and Central Excise Duties Drawback Rules, 1995. Plain reading of statutory provisions of Acts/Rules as clarified vide relevant Notification/C.B.E. & C. Circulars are strictly bindings on the authorities constituted and working under those statute, finds the impugned orders-in-appeal as perfectly legal and proper and same are therefore upheld. - Decided against Revenue. - F. Nos. 195/789-792/2010-RA-CX and 195/111-112/2011-RA-CX - 632-637/2012-CX - Dated:- 11-6-2012 - Shri D.P. Singh, Joint Secretary Shri Shetty, Advocate and Vikrant Apte, Deputy Manager, for the Assessee. None, for the Department. ORDER These revision applications are filed by applicant M/s. Positive Packaging Industries Ltd., Khopoli against the orders-in-appeal passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II, Mumbai, as detailed below :- S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of applicant. 4. Being aggrieved by the impugned order-in-appeal, the applicant Commissioner filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 Ground of revision application in respect of R.A. No. 195/111-112/11-RA (orders-in-appeal No. YDB/825-826/RGD/2010, dated 19-11-2010) :- 4.1.1 That payment of duty at the time of de-bonding does not amount to clearance of goods from the factory. Reliance was also placed on decision on the Hon ble Tribunal in the case of Indo Rama Synthetics (I) Ltd. v. CCE, Nagpur reported in 2005 (190) E.L.T. 193 (Tri.-Mum.) held that by mere change in ownership possession Removal of goods cannot be construed (Para 5 of the order). Reliance was also placed on the letter dated 19-2-2008 addressed to the Range Superintendent wherein it was clearly stated that they will be exporting the de-bonded goods subsequently and refund would be claimed for the duties so paid. Despite having all the submissions on record the Commissioner (Appeals) erred and did not give any finding on the day of payment of duty without looking into the export documents duty certified by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2002 for grant of whole of duty paid. 4.2.2 That the original adjudicating authority as stated at Para 7(a)(iv) has raised a question that whether the total duty i.e. the sum (a) duty paid at the time of de-bonding, and (b) duty paid at the time of clearance can be considered for rebate of duty in a letter addressed to the Range Superintendent. The Range Superintendent in his point-wise reply answered the query positively as stated at Para 7(b)(iv). Despite this the adjudicating authority did not sanction the actual duty paid at the time of de-bonding as rebate and denied the claim under different grounds than what were verified by the Range Superintendent. The Commissioner (Appeals) without going into the provisions of Rule 18 and notification issued thereunder upheld the order-in-original. The applicant submits that none of the provision expressly states that duty as shown in ARE-1 only should be rebated. That without prejudice to their contention procedural lapse if any should not deprive them from the legitimate export incentives such as rebate of actual duty paid in the instant case. 4.2.3 The Commissioner (Appeals) erred in not considering the requirement of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant side as well as respondent side on 19-4-2012. 7. Government has considered the written submissions of the applicant and also perused the orders passed by the lower authorities. 8. Government notes that the factual details of impugned exports from DTA Unit which was earlier a 100% EOU Unit before conversion to DTA Unit are not in dispute so far as the numerical details of amounts, dates and mode of payments of duties are concerned. There is also no dispute to the admissibility of that parts of claimed/granted rebates which pertained to the amounts of Central Excise Duty actually paid at the time of clearances of goods for export from the factory vide relevant ARE-1s/invoices etc. The basic dispute herein is that as to whether the rebate Duties actually paid at the time of de-bonding of a 100% EOU Unit on the goods exported by applicant can be granted under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/04-C.E. (N.T.), dated 6-9-2004. 9. The respondent department has held that rebate of such amounts of Duties paid at the time of conversion of a 100% EOU Unit to DTA Unit is not admissible as per provisions of Rule 18 of Central Excise Rules, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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