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2016 (7) TMI 805 - GOVERNMENT OF INDIA

2016 (7) TMI 805 - GOVERNMENT OF INDIA - TMI - Rebate / refund claim - Rule 18 - merchant export - it was revealed that there was no acknowledgement with regard to 'Let Export Order" by the Customs Authority except for an initial of Superintendent of Customs. Further it was also revealed that the ARE-I did not bear any certificate regarding self-sealing as provided under Clause 6 of Chapter 8 (Export under claim for Rebate) of Supplementary Instructions. It also did not contain the declaration t .....

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ommissioner (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. - 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 a .....

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ECRETARY 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 No.29/Rebate/AC/RD/2012 dated 18.05.2012,30/Rebate/AC/RD/2012 dated 18.05.2012 and 31/Rebate/AC/ RD/2012 dated 18.05.2012 passed by the Assistant Commissioner of Central Excise Division, Raipur. 2. B .....

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nd cleared under the cover of ARE-Is signed by both exporter and manufacturer. The claims were scrutinized in the light of the provisions contained in Section 11 B of the Central Excise Act, 1944. On scrutiny it was revealed that there was no acknowledgement with regard to 'Let Export Order" by the Customs Authority except for an initial of Superintendent of Customs. Further it was also revealed that the ARE-I did not bear any certificate regarding self-sealing as provided under Clause .....

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mounts to availing of double benefits for the one and the same thing. The Assistant Commissioner after processing/scrutinizing the applicant's rebate claims found some discrepancies in the supporting documents which were enclosed with the rebate claims and also following the instructions of the CBEC Circular No. 89/2003-Cus dated 06.102003 rejected all the rebate claims vide Order-in-Original No.29/Rebate/AC/RD/2012 dated 18.05.2012,30/Rebate/AC/RD/2012 dated 18005.2012 and 31/Rebate/AC/RD/2 .....

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at 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 cas .....

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he exporter under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995. That Rule 18 of the Central Excise Rules, 2002 do not stipulate any condition/restriction that if drawback is availed benefit of rebate shall not be allowed. That the CBEC Circular No.35/2010-Cus dated 17.09.2010 and Customs Notification No. 68/2011-Cus(NT) dated 22.09.2011 reveals that simultaneous availment of rebate and customs duty drawback shall be available if drawback rate is 1%. That in the pres .....

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od from 1st September, 2008and 1st October, 2011 respectively. That the aforesaid notifications read with CBEC Circular No. 35/2010 Cus dated 17.09.2010 permits that rebate along with custom allocation of duty drawback are simultaneously available to the exporter. That the applicant is legally entitled to rebate of duty paid on export goods and hence the order of the appellate authority and adjudicating authority that simultaneous claim of rebate and duty drawback of customs allocation will amou .....

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That the Commissioner (Appeals) did not agree with finding contained in Para 9(Xiii) of the Order-in-Original dated 18.05.2012 of the original adjudicating authority that on -the AREI No. AIPL/EXP/37/11-12 dated 03.10-2011 was improper document for sanction of rebate claim, therefore needs no submission. 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 .....

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or 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 reliance on fol .....

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made by different legal fora in the subject. 5.2. That the applicant's contention that the appellate authority has failed to appreciate the facts and points of the dispute in the case is not correct as the appellate authority has considered and discussed all the facts of the case reasonably and legally in the impugned order passed by him. 5.3. That the case laws cited by the applicant do not appear to be applicable in the present case. 5.4. That the applicant's contention that the Commi .....

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ation No. 103/2008-Cus(NT) dated 29.082008 and 68/2011-Cus(NT) dated 2209.2011 and also duly supported by the legal pronouncement by the Hon'ble High Court of Gujarat in the case of M/S Texcellent Worldwide vs U01-2008(225) ELT 173 (Guj). 5.6. That the ratio of judgement of Hon'ble High Court of Gujarat in the case of M/S Texcellent Worldwide vs U01-2008(225) ELT 173 (Guj) is squarely applicable in the instant case. 5.7. That the rebate claim itself is not allowable and liable to be reje .....

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ment 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 e .....

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same. Now the applicant has filed this Revision Application under Section 35 EE of Central Excise Act, 1944 before Central Government on the grounds mentioned at para 4 above. 9. Government observes that the instant rebate claims for refund of duty paid at time of clearance of goods for export are governed by Notification No. 19/2004 CE(NT) dated 06.09.2004, wherein conditions and procedures have been prescribed for claiming rebate of duty in terms of Rule 18 ibid. The said Notification nowhere .....

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d in the manufacture or processing of such commodity or product in terms of Rule 18 of Central Excise Rules, 2002, Similarly Para 1.5 of Part V of Chapter 8 of C.B.E. & C. Manual of Supplementary Instructions debars the benefit of input stage rebate of duty paid on materials used in the manufacture of exported goods where finished goods are exported under duty drawback. In these cases, applicants have claimed rebate of duty paid on finished exported goods and therefore the above mentioned re .....

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ng rebate of duty paid on exported goods when the drawback of Customs portion is availed by exporter. This view is already taken by Government in Government of India Order cited in the impugned Order-in-Appeal i.e. in the case of M/S. Benny Impex Pvt. Ltd - 2003 (154) EL-T. 300. This position was thereafter taken in GOI order No. 551-569/2012-0< dated 11.05.2012 wherein it was held that allowing rebate when drawback of customs portion is availed will not amount to double benefit. 11. Governme .....

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er 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 av .....

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ds in terms of Rule 18 of the Central Excise Rules, 2002, or if such raw materials were procured without payment of Central Excise duty under Rule 19(2) of the Central Excise Rules, 2002, References have been received that exporters are being denied 1% of drawback, which is the customs component of the AIR drawback, on the basis of the above condition although the manufacturers had taken only the rebate of Central Excise duties in respect of their inputs/procured the inputs without payment of ce .....

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ent of Central Excise duty under Ru/e 19(2) of the Central Excise Rules, 2002, "' The content of the above said circular envisage that the Customs component of AIR drawback shall be available even if the rebate of Central Excise duty paid on raw materials used in manufacture of exported goods has been taken in terms of Rule 18 of Central Excise Rules, 2002. This position is made amply clear in the Notification No. 84/2010-cus. (NT) dated 17.09.2010. 13. Government notes that it has from .....

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42/2012-Cx dated 07.05.2012 and held such rebate to be admissible. 14. Further, Government 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 .....

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ished 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. Government notes that Commissioner (Appeals) has only relied on note and condition (8) ofNotifications103/2008-Cus (NT) dated 29.08.2008 and 68/2011 Cus(NT) dated 22-09.2011 and the decision in case of Texcellent Worldwide vs UOI .....

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