TMI Blog2016 (7) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ms are rightly held inadmissible. The applicant has also alternatively requested for re credit of cenvat credit. In this regard, Government notes that re credit is allowed in the cases where the exporter was not required to pay duty at the time of export, however, he pays the same. Such amount paid by the exporter in his own volition cannot be retained by the Government and it is required to be paid back in the form it has been paid. In this case, the applicant was not required to pay duty and hence, the duty was rightly not paid. The duty was paid subsequently at the end of the month on consolidated basis and such duty cannot be treated at par with duty not payable at the time of export and as such, does not qualify for availing of re credit. As such, applicant's request for allowing re credit is not tenable. Application rejected - Decided against the applicant. - F.No.195/1577/12-RA - ORDER NO. 27/2016-CX - Dated:- 29-1-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This revision application is filed by M/S Radiall India Pvt. Ltd., Bangalore against the Order-in-Appeal No.239/2012-CE dated 24.08.12 passed by the Commissioner of Central Excise (Appeals-I), Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Show Cause Notices proposing to reject the rebate claims. The adjudicating authority after following the principles of natural justice in the impugned order, rejected the 5 rebate claims under the provisions of section 11B of the Central Excise Act, 1944 read with Rule 18 of Central Excise Rules, 2002 and Notification No. 19/2004-CE (N.T.) dated 06.09.04 issued under Rule 18. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-In-Appeal, the applicant has filed this Revision Application under Section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 The Commissioner (Appeals) has failed to appreciate that once the factum of payment of duty on the goods exported to SEZ Units has been unequivocally accepted, it is not possible to say that the goods were cleared under 'Bond'. The payment of duty changes the character of exported goods from clearance under 'bond' to 'duty paid'. This is purely a question of fact. 4.2 The Commissioner (Appeals) has failed to appreciate that Rule 30 of the SEZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation in the SEZ is admissible under Section 26 of the SEZ Act, 2005 and it is only the procedure under Rule 18 or Rule 19 of the Central Excise Rules, 2002 adopted to give effect to the statutory provisions of the SEZ Act, as envisaged under Rule 30 of the SEZ Rules, 2006. Therefore, the rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made to SEZ. The Board also clarified that since rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made from DTA to SEZ there is no warrant to change even if Rule 18 does not mention such supplies in clear terms. 4.6 The eligibility for rebate of duty paid is in terms of Rule 30 of the SEZ Rules, 2006 and Rule 18 of the Central Excise Rules, 2002 is admittedly only procedural. The substantive conditions are (i) manufacture and export of goods, and (ii) payment of duty on the goods exported. So long as these substantive conditions are fulfilled, the export incentives cannot be denied even if there are procedural lapses. 4.7 The Hon High Court of Rajasthan in the case of Commissioner Vs. Sun City Alloys Pvt Ltd - 2007 (218) ELT 174 (Raj.) has held that if no duty was leviable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that the applicants made supply to SEZ under Rule 19 of Central Excise Rules, 2002 under UT-I Bond. Subsequently, the applicant found to have paid duty on the said clearances through cenvat account by making consolidated debit entry at the end of the respective months of the clearances and claimed rebate of duty paid on such exported goods. Original authority held that whole export has been done under said Rule 19 ibid, however, the claim was filed under Rule 18 ibid; and as such conditions of the Notification No.19/2004-CE (NT) dated 06.09.2004 issued under Rule 18 ibid have not complied with, Accordingly, original authority held rebate claims non-admissible. Commissioner (Appeals) upheld impugned Order-in-Original. Now, the applicant has filed this Revision Application on grounds mentioned in para (4) above. 8 Government observes that exports were made under Rule 19 of the Central Excise Rules 2002. The said Rule 19 reads as under: Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and hence exercised the option to export goods under Rule 19 and in a way can now claim benefit of Rule 18. 8.3 As the applicant opted to export the goods under Rule 19 without payment of duty and not under Rule 18 on payment of duty, they failed to comply/follow conditions/procedure prescribed under Notification No. 19/2004-CE(NT) dated 06.09.2004. Compliance of these conditions/procedure are substantial in nature and non-adherence to same may lead to denial of rebate claim. In this case mere payment of duty at the end of month on consolidated basis, does not entitle the applicant the rebate claim as the substantial condition of statutory requirements are not met with. It has been rightly held by Commissioner (Appeals) that every system has its checks and balances which cannot be exercised other than at the relevant point of time. 9. Government notes that it is a settled issue that benefit under a conditional notification cannot be extended in case of non-fulfillment of conditions and/or noncompliance of procedure prescribed therein as held by the Apex Court in the case of Government of India vs Indian Tobacco Association 2005(187) ELT 162 (SC); Union of India Vs Dharmend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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