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2015 (11) TMI 358 - CESTAT MUMBAI

2015 (11) TMI 358 - CESTAT MUMBAI - TMI - Denial of rebate claim - Reduction in rate of duty - Held that:- Appellant after filing rebate claim for ₹ 5,82,202/-, informed the sanctioning authority that their claim be sanctioned as per revised rate (which is 8%BED as against 10% BED paid by the Appellant) vide their letter dated 28.05.2009 - From the letter it is amply clear that the Appellant themselves proposed to the sanctioning authority to restrict the rebate claim as per revised rate i .....

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the Assistant Commissioner sanctioned the refund of the same by way of cenvat credit and not by way of cash for the reason that the said difference amount of ₹ 1,16,441/- is not treated as rebate but excess payment, therefore the same was sanctioned as refund of excess payment of duty. - Appellant was not required to file appeal against the order dated 24.06.2009 and they rightly filed a separate refund - Therefore the impugned order is not sustainable, the same is set aside - Decided in .....

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f ₹ 5,82,202/- towards duty paid on the export clearance made under ARE1 No.33 dated 24.02.2009. At the time of export the rate of duty on the export goods was attracting Basic @8% + Education cess, however the Appellant paid duty @10% + Education cess. accordingly paid excess duty. After filing the rebate claim in respect of whole amount of duty of ₹ 5,82,202/- paid by the Appellant, they submitted a letter dated 28.05.2009 wherein it was requested to the sanctioning authority to sa .....

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9-10 dated 7.12.09. Aggrieved by this Order dated 7.12.09 the Revenue filed an appeal before the Commissioner (Appeals) on the ground that rebate application of the Appellant for the whole amount of ₹ 5,82,202/- was disposed of by the Assistant Commissioner by sanctioning the part amount of rebate and if at all there is any grievance of the Appellant it is that Order dated 24.06.2009 against which appeal should have been filed. Since the said order-in-original No.R-263/09-10 dated 24.06.20 .....

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issioner (Appeals) is perverse and illegal. He submits that the Adjudicating authority rightly sanctioned their refund of ₹ 1,16,441/- for the reason that for this amount no previous order was passed, therefore there was no question of filing the appeal against the order dated 24.06.2009 by which the Assistant Commissioner sanctioned the rebate of ₹ 4,65,761/-. He further submits that after filing initial rebate claim for ₹ 5,82,202/-, when they realized that rebate is admissib .....

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ot passed any order in respect of ₹ 1,16,441/- in the rebate sanction order dated 24.06.2009 wherein rebate of ₹ 4,65,761/- was sanctioned. In this position, there was no occasion available to the Appellant to file any appeal by challenging the order dated 24.06.2009. Therefore, the contention of the Revenue that the order dated 24.06.2009 should have been appealed against, is absolutely wrong and on that ground setting aside the Order-in-Original dated 07.12.2009 is not correct and .....

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can not be claimed. I find that the Appellant after filing rebate claim for ₹ 5,82,202/-, informed the sanctioning authority that their claim be sanctioned as per revised rate (which is 8%BED as against 10% BED paid by the Appellant) vide their letter dated 28.05.2009 wherein the Appellant submitted as under: Please refer to our Rebate Claim against ARE-1 No. 33/2008-09 and Export Excise Invoice No.35 both dated 24.02.2009 for duty amounting to ₹ 5,82,202/-. We have paid the duty @r .....

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ly clear that the Appellant themselves proposed to the sanctioning authority to restrict the rebate claim as per revised rate i.e. 8% BED by which rebate amount comes to ₹ 4,65,761/- and the same amount was sanctioned by the Adjudicating Authority. This clearly shows that though the Appellant initially filed the rebate claim for ₹ 5,82,202/- but subsequently, before sanctioning the same, restricted the claim to ₹ 4,65,761/-. In other words the claim of the Appellant was for  .....

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