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2016 (7) TMI 804 - GOVERNMENT OF INDIA

2016 (7) TMI 804 - GOVERNMENT OF INDIA - TMI - Rebate / refund claim - Rebate claim on the basis of supplementary invoices - Period of limitation - Rule 18 - The applicant filed rebate claims and the same were sanctioned - Subsequently, because of contractual obligation the applicant received additional amounts due to cost variance from their importers i.e. M/S. RHI AG Vienna and their other affiliated group companies, on which the applicant paid the differential duty with interest. Subsequent t .....

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053/- is in order. In respect of the claim for ₹ 24,04,012 /- only the rebate of ₹ 18,70,080/- 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 .....

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n 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, Visakhapatnam against the Order-in-Appeal No. 02/2012 (V-II) CE dated 28.062012 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Visakhapatnam, with respect to Order-in-Orig .....

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7 to 30.01.2008 under claim of rebate under Rule 18 of Central Excise Rules, 2002. The applicant filed rebate claims and the same were sanctioned during the period from 15.11.2007 to 18.0712008. Subsequently, because of contractual obligation the applicant received additional amounts due to cost variance from their importers i.e. M/S. RHI AG Vienna and their other affiliated group companies, on which the applicant paid the differential duty with interest. Subsequent to payment of differential du .....

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dated 30.10.2009 basing on the decision in the case of M/S. Sterlite Industries (I) Ltd. Vs. CCE, Tirunelveli [(2009 (236) EL.T 143 (Tri-Chennai)], was where in rebate based on the supplementary invoices raised on foreign buyers was allowed. A Revision Application was filed before the Joint Secretary (RA) against the said Order-in Appeal No.11/2009 (V-11) D CE dated 30.10.2009. 2.2 On verification of the rebate claim for ₹ 24, 04,012/- a Show Cause Notice was issued to the applicant propo .....

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ls) 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 Applicat .....

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2/2009 (V-11) D CE dated 30.10.2009 by setting aside the impugned orders and remanding the case to original authority to decide the case afresh taking into account GOVERNMENT OF INDIA Revision Order No. 418/2011-CX dated 27.04.2011 (F. No. 198/159/09-RA-CX) in the case of CCE Hyderabad vs. M/S. Piramal Health Care Ltd. 2.4 The adjudicating authority in de novo proceedings vide the impugned Order in-Original held that during the material period of export of subject excisable goods that is from 21 .....

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st and is final, therefore the contention of the appellants that their issue is covered under explanation B (2) (f) under section 11B and that their claim is within the time does not hold water and is liable for rejection. The adjudicating authority following the observations of the Hon'ble Joint Secretary decided the issue by holding that the sanction of rebate of ₹ 4,36,053/ is in order, in respect of the other claim for ₹ 24, 04,012/- only the rebate of is in order and rejecte .....

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ected 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 impugned Order-in-Original is ultra vires on the ground 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 app .....

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ger 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 this case, the normal refu .....

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se also the relevant date would be date of finalization of contract. It is also pertinent to note that Notification 19/2004 CE (NT) issued under Rule 18 of the Central Excise Rules does not prescribe any time limit for filing of rebate claim unlike the Notification 41/1994 CE (NT) dated 12.9.1994 where time frame was prescribed as under the section 11 B. Hence no time limit is prescribed for claiming rebate under the Rule 18 of Central Excise Rules in the case of export after the issuance of the .....

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able. For the first one in the G.O.I order dated 5.5.2011, it has been held that the decision of the Sterlilte Industries case is not applicable as the case dealt with an issue when supplementary rebate claim was made before the sanction of original claim. It was held that clause (a) (i) is applicable without Government of India into the fact that assessments were provisional. But nowhere in Sterlite order there is any mention that the supplementary rebate is claimed prior to the sanction of ori .....

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e 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 rel .....

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eme court's Orders in the case of Commissioner vs Telephone Cables Ltd 2004 (163) ELT 117 (SC) In all these orders it has been held by the tribunals, and confirmed by the Supreme Court, that where there is a Price Variation clause in the agreement, the assessment should be, deemed to be, provisional, It has been even held that even where the assessable value is reduced in accordance with price variation clause, the department has to refund the differential duty collected. 4.6 We still hold o .....

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ed or credited to the Cenvat credit. 4.7 The fact of 100% EOU or DTA unit exporting the goods on payment of duty is immaterial and so also section 5A (IA) of the Act. The issue has not been disputed by the Assistant Commissioner in his Order in Original and the assessment has been done by department for the payment of duty including realization of supplementary duty. If the amount is paid by the exporter is to be paid as voluntary deposit with the department, the same is to be returned to the ex .....

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eputy Commissioner appeal for hearing on behalf of the respondent department. 6. Government has carefully gone through the relevant case records available in case files, oral & written submission and perused the impugned Order-in-Original and Order-in-Appeal. 7. Government observes that applicants filed rebate claim on duty paid by them on exported goods, which were sanctioned to them, Subsequently, the applicant received additional amount due to cost variance from buyer of the goods and the .....

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d. 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 barre .....

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er (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 in first round of Revision proceedings, Government vide Revision Order No. 455-456/2011-CX dated 03.05.2011 held that: (i) Original authority and appellate authority rightly held rebate claim of amount ₹ 4,36,053/- with regards to first rebate claim admissible. As regard to second rebate claim of ₹ 24,04,012/- part .....

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