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2016 (7) TMI 989 - GOVERNMENT OF INDIA

2016 (7) TMI 989 - GOVERNMENT OF INDIA - TMI - Condonation of delay - Types of duties which are eligible for rebate in terms of rule 18 of the Central Excise Rules, 2002 read with Notification No.19/2004-CE(NT) dated 06.09.2004. - CVD paid on inputs as imported - It is reiterated that non-fulfillment or otherwise of condition No.53 of Notification No.21/2002-Cus would Have no Application for claiming rebate of specified duties which were not exempted but actually been paid by the applicant. - He .....

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nds that the applicant in their Application for condonation of delay has in a general manner mentioned that they had posted the application on the last day of the stipulated 3 months period and that the delay is caused due to postal delay, The applicant has failed to give any documentary evidences to justify that there were sufficient cause, which prevented them from filing Revision Application in stipulated time in support of their claim for the delay in filing of appeal. Under such circumstanc .....

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SECRETARY ORDER: This Revision Application is filed by the applicant M/S Biocon Limited, Bangalore against the No. JM/28/2012 dated 05.03.2012 passed by the Central Excise, Large Tax Payer Unit, Bangalore with respect to Order-in-Original passed by The Assistant Commissioner (GLT-I), Large Tax Payer Unit, Bangalore. 2. Brief facts of the case are that the applicant has filed the rebate claims for claiming rebate of duty paid on capital goods cleared to M/S Biocon, SEZ. The rebate claim pertains .....

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d 25/2005-Customs dated 1.3.2002, as amended, there are no import conditions consequent upon installation/put to use in the factory. However, in respect of capital goods imported availing benefit under Sl.No.248(1)(a) and (b) of exemption Notification No.21/2002 Customs dated 01.03.2002T as.amended certain conditions under Sl.No 53(i) of the said Notification have to be fulfilled. In the instant case, the applicant have cleared the capital goods imported under Notification No.21/2002 Customs dat .....

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r (Appeal), Bangalore, who rejected the same. 4. Being aggrieved by the impugned, the applicant party has filed this Revision Application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 The applicant submits that both the lower authorities have not appreciated that the Applicant has claimed rebate of actual duty paid i.e. Cenvat credit amount paid on removal of imported capital goods to SEZ. It is submitted that condition No.53 of customs No .....

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eous ground. 4.2 The applicant submits that the impugned order is improper in law in as much as the authorities below have not appreciated that there was no exemption from payment of duty or the applicant had not claimed any exemption benefit in respect of other customs duties such as CVD, education cess and SHE cess and Special CVD. Hence, the question of fulfilling or otherwise of conditions envisaged in Notification No.21/2002-Cus would have no relevance. 4.3 The applicant submits that the Ad .....

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uty (BCD) and no other duties of customs. The rebate claims made by the applicant were in respect of other duties of customs which were actually paid by them on the goods imported and claimed as rebate on clearance to SEZ. Hence, both the lower authorities have erred in law in rejecting rebate claim on the ground that goods imported vide Notification No.21/2002-Cus were cleared in violation of the conditions attached to the said Notification. 4.4 The applicant submits that assuming without admit .....

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es. Under these circumstances, the purported non-fulfillment of condition vide Sl.No.53 of Notification No.21/2002-Cus would have no bearing on entitlement to rebate of duty which was only in respect of CVD, education cess and SHE cess and Special CVD. 4.5 The applicant submits that the Original Authority in his adjudication order had made a categorically finding as to types of duties which are eligible for rebate in terms of rule 18 of the Central Excise Rules, 2002 read with Notification No.19 .....

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es which were not exempted but actually been paid by the applicant. 4.6 The applicant submits that it is well settled that the additional duty of customs leviable under Section 3(1) of the Customs Tariff Act, 1962 is separate and independent of Section 12 of the Customs Act, 1962. In this regard, the applicant places reliance on the decision of the Supreme Court in Hyderabad Industries Ltd vs IJOI, 1999 (108) ELT 321 (SC) - para-10 of the decision. Further, the Supreme Court in UOI vs Modi Rubbe .....

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is not exempted by Sl.No.248 of Notification No.21/2002-Cus. When there is no exemption granted in respect of other duties of customs, the conditions in Sl.No.53 of Notification in question cannot be read into in respect of said other duties. 4.7 The applicant submits that assuming without admitting that condition No.53 of Notification No.21/2002-Cus has been violated then the proper remedy available to department is to demand customs duty which has been exempted in terms of the above Notificat .....

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SEZ on payment of duty under rule 18 of the CER, 2002, then whatever duty actually paid on goods cleared to SEZ is eligible as rebate/refund. In the applicant's case, it is an undisputed fact that the applicant had paid duty on clearance of goods to SEZ. 4.9 The applicant submits that the Department does not dispute the legal position at supply of goods to SEZ would amount to "export". This is evident from the definition of "export" in Section 2(m)(ii) of the SEZ, 2005. A .....

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filing appeal beyond stipulated 90 days period as under: 5.1 The applicant submits that they are in receipt of the impugned order passed by the Commissioner (Appeals) on 07.03.2012. The revision application against the above impugned order should have been filed within a period of three months which expired on 07.062012. The above revision application was sent by Registered Post on 06.06.2012 itself which is evident from the postal acknowledgment slip enclosed to this application. However, it ap .....

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application may kindly be condoned as the delay is caused due to transit on the part of the Postal authorities and the delay so caused is "condonable" as per law. In this regard, the applicant places reliance on the decisions in Viresh Kumar & Bros vs CC, 1987 (27) ELT 699 (Tri.); Jhabboo Lai Kesara Rolling Mills vs IJOI, 1985 (19) ELT 367 (All.) and in Vanivilas Cooperative Sugar Factory Ltd vs I-JOI, 1983 (12) ELT 290 (Kar.) 5.3 The applicant submits that they place reliance on .....

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was dispatched by speed post from Bangalore within due date. The grounds of Revision Application were reiterated. Nobody attended hearing on behalf of the Department but they have furnished the written submission vide letter dated 27.03.2014 wherein they mainly reiterated contents of impugned orders. 7. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. Upon perusal of records, Government observes that the applicant .....

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ision Application on grounds mentioned in para (4) above. 9 At the outset, Government observes that the Revision Application has been filed beyond stipulated period of three months. The applicant has filed Application for condonation of delay wherein they mainly stated that the delay has occurred due to postal delay and may be condoned. The applicant has submitted that as the impugned was received them on 07.03.2012, the revision application against the said order should have been filed within a .....

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"Section 35EE Revision by Central Government: (1) ………. (1A) ………. (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 that the applicant was prevented by sufficient cause from presenting the Application within the aforesaid period of three months, allow it to .....

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