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2016 (10) TMI 275

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..... d that:- 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. In view of the exposition of law, it is evidently clear that the circular 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. .....

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..... granted total exemption from payment of duty on the products manufactured by them subject to the condition that no credit is taken on the inputs consumed 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 erroneously allowed the rebate claim in cash and the same was required to be sanctioned by way of re-cred .....

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..... rties 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:- Circular: 687/3/2003-CX. Dated 03-Jan-2003 Rebate of duty paid from Cenvat credit account for exported goods to be refunded in cash Circular No.687/3/2003-CX., dated 3-1- 2003 F.No.267/57/2002-CX-8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Custo .....

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..... e 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.687 was inapplicable to the case. It was in this background that the Court then made the following order while dismissing the petition of the assessee. After giving our anxious consideration to the entire matter, we are of the opinion that this writ petition must fail. It would be noticed that there is no dispute regarding entitlement of the petitioner for refund, it is only the mode thereof which is the matter of contention. While the petitioner asserts that it is entitled to claim the entir .....

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..... vailable with the sanctioning authority to give refund of duty paid on goods exported, save and except, in cash and the same could not have been paid by way of credit in the Cenvat Credit Account. 15. It is more than settled that the circulars issued by the Board are binding on the department and the department cannot be permitted to urge that the circulars issued by the Board are not binding on it. This has so been held in a series of decisions of the Hon ble Supreme Court and reference in this regard 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 In .....

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