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2015 (8) TMI 1325 - GOVERNMENT OF INDIA

2015 (8) TMI 1325 - GOVERNMENT OF INDIA - 2016 (334) E.L.T. 700 (G. O. I.) - Whether the rebate of duty and duty draw back can be claimed simultaneously? - N/N.68/2011-Cus. (N.T.), dated 20-9-2011 - Held that: - decision in the case of AMRIT PAPER Versus COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2006 (7) TMI 7 - SUPREME COURT OF INDIA] relied upon where it was held that primacy to a Notification cannot be given over Rules as such interpretation will render statutory provisions in Rules nugatory. .....

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ated:- 24-8-2015 - Ms. Rimjhim Prasad, Joint Secretary ORDER This revision application is filed by M/s. Raghav Industries Ltd., Tiruchengode, against the Order-in-Appeal No. 01/2013, dated 31-1-2013 passed by Commissioner of Central Excise (Appeals), Salem, with respect to Order-in-Original No. 387 to 389/2012(R), dated 29-10-2012 passed by the Assistant Commissioner of Central Excise, Erode-I Division, 2. Brief facts of the case are that the applicant has filed 3 rebate claims for the duty .....

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l, applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The crux of issue and short point for consideration in the case on hand is as to whether the applicant are eligible to claim rebate duty as well as duty draw back simultaneously. The basic facts and figure .....

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In other words, this appellant is entitled to claim rebate of duty along with duty drawback inasmuch as the drawback has been claimed in respect of Customs duty. 4.2 The instant rebate claims are governed by Notification No. 19/2004-Central Excise (N.T.), date 6-9-2004 wherein, condition and procedure has been prescribed for claiming rebate of duty in terms of Rule 18 of Central Excise Rule, 2002. The said notification nowhere puts any restriction to the effect that rebate of duty paid on e .....

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ndition No. 6 to Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008; drawback of duty can be availed when Cenvat facility has been availed but the rates applicable is lower rate. The C.B.E. & C. Circular No. 19/2005-Cus., dated 21-3-2005 has also clarified that the concept of All Industry Rate of duty drawback that the rates are determined taking into account of average duties paid on inputs and in determining rates, the average (weighted average) consumption of imported/indigenous input .....

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e 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 Notification No. 84/2010-Cus. (N.T.), dated 17-9-2010. 5. Personal hearing in this case held on 30-3-2015 and 16-4-2015. Hearing held on 16-4-2015 was attended by Shri M. Kartikeyan, advocate on behalf of the applicant who reiterated the grounds of revision application. During the course .....

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al Central Excise authorities that they have not availed Cenvat credit on inputs used in manufacture of grounds which are exported. 5.1 A written submission/counter reply to the Revision Application was also made by the Department vide its letter dated 26-3-2015 (received on 31-3-2015) wherein it was started as under - 5.1.1 The applicant has availed 9.5% drawback which is nothing but total drawback inclusive of all components i.e. Customs, Central Excise & Service tax, the rebate .....

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case files, oral & written submission and perused the impugned order-in-original and order-in-appeal. 7. The applicant exported the goods on payment of duty during from their Cenvat credit account. Subsequently, they filed rebate claims. The original authority held that as the applicant availed higher rate of drawback, the benefit of rebate cannot be held admissible, as it will amount to double benefit. Commissioner (Appeals) upheld impugned Order-in-Original. Now, the applicant has fil .....

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allowing rebate would amount to double benefit. In view of rival contentions, Government proceeds to examine the case keeping in mind the various provisions of law relating to drawback as well as rebate of duty paid on export goods. 9. Government first proceeds to decide the issue of admissibility of rebate claims taking into account the harmonious and combined reading of statutory provision relating to rebate as well as duty drawback scheme. Government notes that the term Drawback has been .....

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pulates that where any goods are exported, Central Government may, by Notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods. The provisions of Rule 18 of Central Excise Rules, 2002 are interpreted by Hon ble High Court of Bombay at Nagpur Bench, in the case of CCE, Nagpur v. Indorama Textiles Ltd. [2006 (200) E.L.T. 3 (Bom.)] wherein it was held that rebate provided in Rule 18 of Central Excise Rule, 2002 is .....

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oods while he has already availed benefit of higher rate of duty drawback comprising of Custom and Central Excise portion in respect of said exported goods. The drawback is nothing but rebate of duty chargeable on materials used in manufacturing of exported goods and therefore allowing rebate of duty paid on exported goods will amount to allowing both types of rebates of duty at inputs stage as well as finished goods stage which will be contrary to the above said judgment of Hon ble Bombay High .....

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he applicant has availed higher rate of drawback @ 9.5% is an admitted fact which has not been controverted by the applicant by way of any documentary evidences and reliance of the applicant on Circular No. 35/2010, dated 17-9-2010, also does not come to the rescue of the applicant. Reliance is placed upon Notification No. 68/2011-Cus. (N.T.), dated 22-9-2011 by the lower authorities, wherein it has been stipulated that benefit of rebate and higher rate of drawback cannot be availed together, al .....

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l apply to simultaneous availment of rebate and customs portion of drawback. The harmonious and combined reading of statutory provisions of drawback and rebate scheme reveal that double benefit is not permissible as a general rule. However, in this case, the applicant has availed input stage rebate of duty in the form of higher duty drawback comprising of Customs and Central Excise portion, another benefit of rebate of duty paid on exported goods will definitely amount to double benefit. 11.&ems .....

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