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Commissioner of Central Excise, Mumbai-Ill. Versus M/s. Cipla Ltd.

2016 (7) TMI 869 - GOVERNMENT OF INDIA

Condonation of delay - department has filed these revision application 4 days after initial stipulated three months period - Rebate / refund claim - export of goods - the original authority rejected the rebate in toto, on the ground that the applicant claimed simultaneous benefit of rebate and drawback which is not admissible. - Commissioner (Appeals) allowed the appeal by holding that as the respondent availed only Customs portion of drawback, rebate claim is admissible to them. - Held that .....

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hat onus to show cause for not filing application is on the applicant who has failed to show sufficient cause that prevented him from filing Revision Application within stipulated period of three months. The Revision Application has been made contrary to the provisions of Section 35EE (2) and is, therefore, liable for rejection. - Decided against the revenue. - F.No.198/80/2012-RA - ORDER NO. 54/2016-CX - Dated:- 31-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This revision applicati .....

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he duty paid on export of their goods under Rule 18 of Central Excise Rules, 2002, which were exported by them The original authority held that rebate claim is admissible @ 4% on the goods cleared for home consumption in terms of Notification No. 4/2006-CE dated 01.03.2006, as amended, whereas for exports they have paid duty @ 10% under the Notification No. 2/2008-CE dated 01.03.2008 as amended. However, the original authority rejected the rebate in toto, on the ground that the applicant claimed .....

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lowing grounds. 4.1 As per para 15 of Customs Notification No. 84/2010-Cus (N.T.) dated. 17.09.2010 issued under F. No. 609/76/2010-DBK, as regards the 'expression' "when Cenvat facility has not been availed" used in the Schedule to aforesaid Notification, the exporter shall satisfy the following conditions, namely. (i) The exporter shall declare, and if necessary, establish to the satisfaction of the Assistant Commissioner of Customs or Assistant Commissioner of Central Excise .....

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ds under export is produced." In the instant case no such certificate has been produced. 4.2 As regards payment of excise component of All Industry Rates of Drawback, a declaration of non-availment of Cenvat facility is necessary. Manufacturers and merchant-exporters with a supporting manufacturer are required to give a self-declaration in the prescribed form that such manufacturers are not registered with central excise and at they do not avail/ have not availed Cenvat facility. In the cas .....

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awback. 4.4 Further, as per the guidelines prescribed under Duty Drawback Procedures, Drawback is not admissible if Cenvat Credit is availed. Therefore, to claim duty drawback, the claimant has to certify that they have not availed Cenvat credit as per Cenvat Credit Rules, 2004 to comply with the provisions of Central Excise Duties Drawback Rules, 1995. Hence, party can avail only one benefit either input credit or drawback claim. Thus, simultaneous availment of two benefits is not admissible to .....

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ction 35 EE of Central Excise Act, 1944 to file their counter reply. The respondents vide their written submission mainly reiterated contents of impugned Order-in-Appeal. They also relied upon Government of India's Order No. 1568-159.5/2012-CX dated 14.11.2012 in favour of their contention. 6. Personal hearing scheduled in this case on 20.07.2015, 10.08.2015 and 10.09.2015. Shri Prashant Mhatre attended on behalf of the respondent who reiterated the grounds of the written submission. Nobody .....

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2.2012. Hence appeal should have been filed in this case by 09.05.2012. 7.2 That as per the provisions of Section 35 EE (IA) of Central Excise Act, 1944 the Revision Application against the orders of Commissioner (Appeals), is required to be filed within three months from the date of receipt of the Commissioner (Appeals)'s Order. 7.3 That though the Order-in-Appeal was reviewed and application dispatched by their office on 04.05.2012 by speed post A.D. (within three months from the date of r .....

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of documents and verification from CFS, Mulund also contributed to delay in filing the Revision Application. 8. 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. 9 Government observes that the rebate claim of the respondent was rejected by the original authority. The respondent filed appeal against the Order in-Original and the Commissioner (Appeals) allowed the ap .....

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led beyond the stipulated period of three months. 10.1 The time limit of filing Revision Application has been specified in Section 35EE (2) ibid which reads as under: "Section 35EE. Revision by Central Government: (1) …… (IA) ...... (2) An application under sub-Section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made: Provided that the Central Government may, if it is satisfied th .....

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