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2016 (7) TMI 805

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..... ed to avail benefit of Drawback of Customs portion and rebate on finished goods. Government further observes that another contention of the applicant is that original authority as well as appellate authority have erred while giving their findings that the ARE-I did not bear any certificate regarding self-sealing. They have claimed that the said export goods have been made by the applicant themselves under the examination and sealing of Range Superintendent and Inspector while referring to the ARE-I. In this regard, Government observes that under such circumstances, being a matter of fact, the claim of the applicant for the purposed correlation of duty paid goods with the goods exported needs to be verified on the basis of original documents. - Matter remanded back. - F.No.195/252-254/2013-RA-CX - ORDER NOZ. 36-38/2016-CX - Dated:- 22-2-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: These revision application are filed by M/S Black Stone Overseas Pvt. Ltd, Kolkata (hereinafter referred to as applicant) against the Order-in-Appeal No. 182184/RPR-I/2012 dated 19.10.2012 passed by Commissioner of Central Excise, (Appeals-I), Raipur with respect to Order-in-Original N .....

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..... .2012 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. That the Commissioner (Appeals) has failed to appreciate that in the present case there is no dispute on the following facts: a) That the export product was duty paid; b) That benefit of drawback @ 1% towards customs allocation was availed; c) That Rule 18 of the Central Excise Rules, 2002 does not restrict for grant of rebate even if duty drawback is allowed; d) That CBEC Circular clarifies that rebate will be admissible even if customs allocation of duty drawback allowed; e) That other Maritime Commissionerates are allowing the rebate in identical cases. 4.2. That the Commissioner (Appeals) has failed to appreciate that as per AIR Drawback Table, for the goods exported by the applicant the rate of duty drawback is 1% for both the column A and B and that as per Customs Notification i.e. where Cenvat credit is availed or not availed. That the CBEC circular clarifies that in case of export of duty paid goods under claim of reba .....

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..... ubmission. 4.6. That the Commissioner (Appeals) has gravely erred while giving his finding that the ARE-I did not bear any certificate regarding self-sealing and also that who will claim the duty drawback. That the said export goods have been made by the applicant themselves under the examination and sealing of Range Superintendent and Inspector as is evident from the ARE-I. That with regard to duty drawback claim, the said export goods have been made by the applicant themselves in its own name as evident from the shipping bills and hence the applicant is entitled to claim the drawback. 4.7. That it is well settled principle that Section 11 BB of the Central Excise Act, 1944 provides provision for payments of interest on delayed refunds, in case the duty ordered to be refunded to any applicant is not refunded within 03 months from the date of receipt of application. That the applicant for refund has been submitted with the department on 08.1212011 along with all requisite papers/documents, which is beyond three months, therefore interest will be admissible to the applicant by applying provisions of Section 11 BB of the Central Excise Act, 1944. 4.8. The applicant placed re .....

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..... f Aarti Industries Ltd, wherein rebate of Central Excise Duty paid has been allowed even if customs component of drawback taken. None from the Department attended the personal hearing. 7. Government has carefully gone through the relevant case records available in case files, oral written submissions and perused the impugned Order-in Original and Order-in-Appeal. 8. On perusal of records, the Government observes that the applicant in the capacity of Merchant Exporter filed three rebate claim amounting to ₹ 4,27,702/-, ₹ 1,97,822/- and Rs,4,36,844/- before the Assistant Commissioner, Central Excise Division, Raipur against export of excisable goods viz Cast Iron Products which they procured from the manufacturer M/S Arpee Ispat Pvt. Ltd, Raipur, a manufacturer, for export to foreign countries on payment of duty and cleared under the cover of ARE-Is. The Assistant Commissioner vide impugned Orders in-Original rejected the claims of the applicant. Aggrieved by the orders of the adjudicating authority, the applicant filed appeal before the Commissioner (Appeals-I), Raipur who vide impugned Order-in-Appeal rejected the same. Now the applicant has filed this Revision .....

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..... not amount to double benefit. 11. Government notes that the composite rates of drawback have been bifurcated into Central Excise portion Customs portion and that too in two types of different situations i.e when Cenvat Credit facility has been availed and when no Cenvat credit facility is availed. Notification No. 103/2008-Cus(NT) dated 29.08.2008 condition no. 6 envisages as under: The figures shown under drawback rate and drawback cap appearing below the columns. Drawback when Cenvat facility has not been availed refer to the total drawback (Customs, Central Excise, Service Tax component put together) allowable those appearing under the Colum Drawback when cenvat facility has been availed refer to the drawback allowable under the customs component The difference between the two column refers to the Central Excise Service Tax components drawback If the rate indicated is the same in both the column, it shall mean that the same pertains to only customs component is available respective of whether exporter has availed Cenvat or not. 12. It may be noted that CBE C vide circular No. 35/2010 dated 17.09.2010 has further clarified the position as under: .....

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..... rnment notes that the Commissioner (Appeals) in his order has relied upon the decision of the Hon'ble High Court of Gujrat in the case of M/S Texcellent World Wide vs UOI reported in 2008 (225) ELT 173 (Guj) in which the Hon'ble Court has held that From the above, it is dear that DEPB benefit and Rule 12(1) (b) rebate cannot be allowed simultaneously. This restriction is kept because reimbursement of duty incidence cannot be allowed twice, first time on deemed basis (DEPB) and second time on actual basis (Rule 12 (1) (b) rebate), Benefit can be given only once in one of the methods available. From the above, Government notes that the Commissioner (Appeals) has not taken into consideration the full facts of the case in as much as that whether the applicant has claimed drawback on customs portion and rebate on finished goods. Also there is no bar on availment of rebate on duty paid on exported finished goods w.r.t export made under DEPB Scheme. As such, reliance of the Commissioner (Appeals) on above said High Court is not applicable to the present case as the applicant has claimed to avail benefit of Drawback of Customs portion and rebate on finished goods 15. Gove .....

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