TMI Blog2014 (3) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... dition is not satisfied and therefore, rebate claim cannot be held admissible. Commissioner (Appeals) has erred in considering the adjustment of duty before filing of rebate claim as compliance of condition No. 2(a) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 r/w provision of Rule 18 of Central Excise Rules, 2002. In view of above said statutory position the said rebate claims of ₹ 91,34,616/- pertaining to ARE-1 Nos. 29/2009-10 and 30/2009-10 both, dated 17-3-2010 are not admissible to the respondents. - Decided against assessee - F. Nos. 198/651/2011-RA & 195/12/2012-RA - 91-92/2014-CX - Dated:- 19-3-2014 - Shri D.P. Singh, Joint Secretary Shri S.G. Pradhan, Superintendent (Tech.) and V.D. Kulkarni, Superintendent (Review), for the Department. None, for the Assessee. ORDER These revision applications are filed by Commissioner of Central Excise, Aurangabad and M/s. Sanket Food Products P. Ltd., Unit-II, Gut No. 186, Dawalwadi, TQ, Badanapur, Distt. - Jalna against the same Orders-in-Appeal No. AGS/170/34/2011, dated 10-10-2011 passed by the Commissioner of Central Excise (Appeals), Aurangabad with respect to Order-in-Original No. 01/Reb/DC/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- were appropriated towards defaulted amount due for the month of March 2010. Even the part amount of interest amounting to ₹ 62,42,404/- for the same month was appropriated vide Order-in-Original, dated 30-3-2011. Out of total rebate of ₹ 91,34,616/- an amount of ₹ 45,67,308/- was pertaining to ARE-1 No. 30/2009-10, dated 17-3-2010 against which rebate claim was filed on 31-1-2011. Since, the date of appropriation of duty against ARE-1 No. 30/2009-10, dated 17-3-2010 is 7-3-2011; therefore, the claim is premature filed before payment of duty. Rebate is refund of duty paid due to export of goods. The date on which application for rebate was filed, duty was not paid. Therefore, such application became premature. The rebate cannot be allowed on such premature application. Therefore, the impugned order needs to be set aside as far as amount involved in such premature claim. However, in respect of rebate claim against ARE-1 No. 29/2009-10, dated 17-3-2010 which was filed on 9-3-2011 it is also observed that the rebate claim was filed after payment of duty through appropriation hence cannot be set aside for reason stated earlier. Accordingly he modified the Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the export goods have not actually been examined by the officers. (iv) In this case while opting for self sealing of the goods the assessee ought to have followed the procedure prescribed in the C.B.E. C. circular on the issue which only can ensure the nexus between the goods manufactured and the goods actually exported. The respondent has failed to follow the procedure for self sealing of export goods, therefore, it appears that the nexus between the goods manufactured and the goods actually exported cannot be established and consequently the respondent are not eligible to get the rebate. 3.2 In view of the above factual and legal position it appears that the Order-in-Appeal No. AGS (170)/34/2011, dated 10-10-2011 passed by the Commissioner (Appeals), Central Excise and Customs, Aurangabad relying upon Order No. 198/2011-CX, dated 24-2-2011 passed by the Joint Secretary is not proper and legal to the extent allowing rebate of ₹ 45,67,308/- in respect of ARE-1 No. 29/2009-10, dated 17-3-2010 and needs to be set aside. 3.3 It is also observed that the department has preferred to file a writ petition dated 1-6-2011 in the Hon ble High Court against the Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 18 of the Central Excise Rules, 2002 read with Rule 14 of the Pan Masala Rules. There is no such condition in the said rules or the notification that duty should be paid before filing the rebate claim. Moreover for filing the rebate claim an assessee is bound by the time limit imposed by Section 11B of the Central Excise Act, 1944. However for payment of duty, the Central Excise Act, 1944 and the Pan Masala Rules specifically provide for levying of interest on the delayed payment of duty. A harmonious construction of the provisions of Rule 18 of Central Excise Rules, 2002, Rule 14 of Pan Masala Rules the provisions for levy of interest under Section 11A of the Central Excise Act, 1944 and the 2nd proviso to Rule 9 of the Pan Masala Rules shows that even if there is delay in payment of duty, then also, if the duty has been paid before the rebate claim is decided, then such claim is admissible as the goods are duty paid goods on the date on which the rebate application is decided. 4.5 On one hand the applicant s rebate claim for earlier period has been appropriated by the department towards the duty for the month of March 2010 and on the other hand, the department is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Sanket Food Products Pvt. Ltd. (called respondent) have filed said revision application against said Order-in-Appeal on the grounds stated above. 9. Government notes that in the instant case the duty was not paid at the time of clearance of goods from factory for export. This facts is on record that respondent had not paid Central Excise duty amounting to ₹ 5,97,50,000 for the clearance effected during March 2010. So the said goods pertaining to ARE-1 No. 29/2009-10 and 30/2009-10 both, dated 17-3-2010 were undisputedly cleared for export without payment of duty. In the case decided vide GOI revision order No. 198/11-CX, dated 24-2-2011 there was no default of payment and goods were exported on payment of duty as verified the jurisdictional Central Excise Range Superintendent. So the ratio of said GOI revision order, dated 24-2-2011 cannot be applied to this case as regards payment of duty. Applicant department has erred in mixing up the issue of payment of duty with the issue of procedural lapses in the grounds of revision application. 10. Government notes that as per provisions of Rule 18 of Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
