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2016 (10) TMI 275 - HIMACHAL PRADESH HIGH COURT

2016 (10) TMI 275 - HIMACHAL PRADESH HIGH COURT - 2017 (345) E.L.T. 350 (H. P.) - Mode and manner of refund - whether the rebate claims of the assessee(s) were to be allowed in cash or sanctioned by way of re-credit - manufacture and export of cotton yarn and woven fabrics, both for domestic market as well as for export - by Notification No.30/2004-CE, the assessee(s) were granted total exemption from payment of duty on the products manufactured by them subject to the condition that no credit is .....

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issued by the Board cannot be assailed by the petitioner herein. Further, there can be no dispute that in terms of the said circular, there was no discretion vested with the sanctioning authority to give the refund of the duty on goods exported through credit accounts, rather the duty paid through actual credit or deemed credit account on the goods exported has to be refunded only in cash. - Decided against the Revenue - CWPs No. 5462, 5468 and 5469 of 2010 - Dated:- 27-9-2016 - Mansoor Ahmad Mi .....

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uty, but has only contested the mode and manner of such refund, therefore, the seminal issue in all these petitions is whether the rebate claims of the assessee (s) were to be allowed in cash or sanctioned by way of re-credit. 3. However, before answering the question, brief facts as necessary for the disposal of these petitions may be noticed. 4. All the assessee(s) are engaged in the manufacture and export of cotton yarn and woven fabrics, both for domestic market as well as for export and exc .....

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sumed in the manufacture of the final product. The assessee(s) started clearing the goods for export on payment of duty on export under claim for rebate. As per the declarations the assessee (s) had not availed Cenvat Credit on the inputs use. 6. The Assistant Commissioner, Central Excise, sanctioned the rebate claim in cash. 7. Aggrieved by the said order, the petitioner filed an appeal before the Commissioner (Appeals) which was allowed by holding that the adjudicating authority had erroneousl .....

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ently argued that the impugned orders are patently illegal and erroneous as the revisional authority had itself on an earlier occasion passed an order in another revision petition holding the assessee therein to be entitled to the rebate by way of re-credit into their Cenvat Credit Account instead of sanctioning the same in cash. Not only this, the said order has been upheld by the learned Division Bench of the Punjab and Haryana High Court at Chandigarh in CWP No.2235/2007 titled M/S Nahar Indu .....

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en passed in conformity with the law. We have heard the learned counsel for the parties and gone through the records of the case. 11. At the outset, it may be noticed that the Central Board of Excise and Customs (for short Board ) has issued Circular No.687 dated 03.01.2003 wherein it has been clarified that the duty paid through the actual credit or deemed credit account on the goods exported must be refunded in cash. 12. It shall be apt to reproduce the relevant circular which reads thus:- Cir .....

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om F.No.210/21/87- CX.6, Circular No.153/64/95-CX., dated 12-10-95 issued from F.No.209/47/95-CX. 6 and Circular No.262/96/96-CX., dated 6- 11-96 issued from F.No.209/36/96-CX. 6 [1996 (88) E.L.T.T39] wherein it has been, inter alia, clarified that rebate could be sanctioned in cash in respect of the duty payment made through credit accounts of Modvat scheme on inputs or capital goods or deemed credit account. Subsequently, Board has been receiving representations from trade to say that the reba .....

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w. 13. Adverting to the contentions of the learned counsel for the petitioner whereby he has vehemently argued that the instant cases are covered by the judgment in M/S Nahar Industrial Enterprises (supra), suffice it to say that we have gone through the said judgment and find that the same is clearly distinguishable because therein the admitted case of the parties was that the assessee had paid lesser duty on the domestic product and higher duty on the export product, therefore, the Circular No .....

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refund in cash, it is the case of the respondents that the petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for the remaining portion, refund by way of credit is appropriate. The first reliance of the petitioner is on the above quoted circular No.687. A reading of the same makes it clear that it did not deal with the distinction between the duty paid and duty payable. In our opinion, the said circular only laid down that the duty paid and payable wou .....

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thin the time. Even the declaration filed by the assessee(s) to the effect that the value i.e. assessable value declared in ARE-I on which duty had been paid is the transaction value determined under Section 4 and the Range Officer had also verified the same and it is only thereafter that the rebate of duty mentioned in ARE-I was held admissible to the assessee(s). Once the assessee(s) are held entitled to the rebate, then obviously, in terms of Circular No.687, there was no discretion available .....

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can conveniently be made to Navnit Lal C. Javeri v. K.K.Sen AIR 1965 SC 1375, Ellerman Lines Ltd. v. CIT (1972) 4 SCC 474, K.P. Varghese v. ITO (1981) 4 SCC 173, Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1, CCE v. Usha Martin Industries (1997) 7 SCC 47, Ranadey Micronutrients v. CCE (1996) 10 SCC 387, CCE v. Jayant Dalal (P) Ltd. (1997) 10 SCC 402, CCE v. Kores (India) Ltd. (1997) 10 SCC 338, Paper Products Ltd. v. CCE (1999) 7 SCC 84 and Dabur India Ltd. v. CCE (2004) 13 SCC 107. 16. .....

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