TMI Blog2016 (7) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... was sanctioned and ₹ 5,33,92/- was rejected as time barred. Government further notes that the applicant is challenging only rejection of ₹ 5,33,932/- in this Revision Application. This issue has already been settled in first round of Revisionary Proceedings vide Government of India Revision Order No. 455-456/11-CX dated 03105.2011. The said Revision Order dated 03.05.2011 has not been reported by the applicant to have challenged before any higher judicial forum. As such, the said Revision Order dated 03.05.2011 has attained its finality. As such, rebate claim of ₹ 5,33,932/- which was held inadmissible as time barred, also attained finality. This issue, which has already attained finality, cannot be raised in this second round of Revisionary Proceedings as the issue is no longer res-integra. The whole case, therefore, becomes infructous and as such, Revision Application cannot be entertained at this stage. Revision application rejected - Decided against the applicant. - F.No.195/844/2012-RA - ORDER NO. 20/2016-CX - Dated:- 28-1-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by M/S RHI Classil Limited, Visak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal authority sanctioned the claim in full i.e. ₹ 24, 04,012/- Vide Order-in-original No. 15/2009 (R)/BP/VSP-S/CEX dated 27.04.2009. On review of the above Order-in-Original by the competent authority, the Department being aggrieved by the impugned order filed an appeal before Commissioner (Appeals) and the same was dismissed vide Order-in-Appeal No. 12/2009 (V-II) D CE dated 30.10.2009 basing on the decision in the case of M/S. Sterlite Industries (I) Ltd. Vs. CCE, Tirunelveli (2009 (236) ELT 143 (Tri-Chennai), where in rebate based on the supplementary invoices raised on foreign buyers was allowed. A Revision Application was filed before the Hon'ble Joint Secretary (RA) against the Order-in-Appeal No. 12/2009 (V-II) D CE dated 30.10.2009. 2.3 The Joint Secretary (Revision Application) vide Government of India Order No. 455- 456/2011-CX dated 30.05.2011, decided both the above said Order-in Appeal No. 11/2009 (V-11) D CE dated 30110.2004 and 12/2009 (V-11) D CE dated 30.10.2004. The Revisionary authority held that the rebate claim of ₹ 5,33,932/is time barred in terms of provision of Section 11B and liable to be rejected. The JS (RA) disposed off the revision ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that Adjudication has gone beyond what has been ordered in the G.O.I. order No. 45556/2011 to decide the case afresh on issue of M/S Piramal case only. After deciding that the order of the Joint Secretary (RA)is not applicable to the case, as the unit is not EOU but DTA unit, only option open was to request the Revisionary authority to revisit his order and rectify the mistake which occurred due to miscommunication. But still he proceeded on his own and finalized the case disregarding the JS(RA) orders. 4.2 It is clarified that the period of 1 year from the date of Export figuring in Para 11B (1) pertains to the normal single consignment Export. In this case, export is covered by a contract pertaining to a longer period. The Contract Price is covered by a Price Variation Clause. Against the Export of different consignments under claim of rebate, the unit had received its refund. Subsequently, when additional amount was received from buyer after finalization of contract, as per the agreement, additional duty was deposited and refund was claimed against the said additional payment. It is not stipulated anywhere that only duty paid at the time of export only can be rebated. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 100% EOU the direction has been issued to the original authority to decide the case afresh. In the G.O.I order of 5.5.2011 the main thrust is on whether rebate can be sanctioned for 100% EOU and duty paid must be considered to be a deposit and the amount is to be re-credited to Cenvat Account. As our unit was not an 100% EOIJ during the period, that discussion is no more relevant. In the following cases the supplementary payments beyond time limit of one year were discussed and they got benefit. As the AC has now confirmed that during the material period our unit was not an EOU, the above discussion has no further relevance. 4.5 In this case, whether an express provisional, assessment was made or not, the assessment made would be deemed to be provisional. We seek the assistance of CESTAT order in the cases of - Commissioner of Central Excise, Chennai Vs Sri Balaji Cylinders- 2009 (235) ELT 101 (Tri-Bang), page - 15 Ideal Industrial Explosives Ltd vs CCE Hyderabad-2008 (231) ELT 485 (Tri-Bang), Page - 17, Para - 7 Telephone Cables Ltd vs CCF ohandigarh-2003(154) ELT-234(Tri- Delhi) Page - 21, and finally Supreme court's Orders in the case of Commissioner vs T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l amount due to cost variance from buyer of the goods and they paid differential duty along with applicable interest and filed two rebate claims amounting to ₹ 4,36,053/- and ₹ 24,04,012 /- The first rebate claim of ₹ 4/36,053 was allowed by the original authority and upheld by the appellate authority in the first round of revisionary proceedings. In respect of second rebate claim of ₹ 24,04,012/-, a show cause notice was issued for rejection of part rebate clam to the tuned ₹ 5,33,932/- on ground of being the same time barred. However, the original authority sanctioned the whole rebate claim of ₹ 24,04,012/-. Being aggrieved by both rebate sanctioning orders, the department preferred appeals before Commissioner (Appeals), who rejected department's appeals. Subsequently, the Department filed Revision Application before JS (RA). JS(RA) vide Government of India order No. 455-456/2011-CX dated 03.05.2011 modified Commissioner (Appeals) order in as such as the rebate claim of ₹ 5,34,932/- held time barred and that amount of ₹ 4,36,053/- and ₹ 24,04,012 /- rightly held admissible. However, Government remanded the whole case to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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