TMI Blog2016 (12) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to the lack of jurisdiction in the facts, the government cannot be heard to say that it did possess jurisdiction under Section 35EE - answered against Revenue. Whether the CESTAT has the jurisdiction to decide the appeal in respect of any order passed by the Commissioner (Appeals) under Section 35A of the Central Excise Act, 1944 read with sub-section 1(b) of Section 35B of the Act ibid and proviso thereto in the cases wherein goods have been exported out of India (except to Nepal and Bhutan) CEAC 11/2005 Page 2 of 7 without payment of duty? - Held that: - the permissibility of the credit in the facts of the case, undoubtedly, Rule 57F, as existing on the date, did not permit credit in case of clearance made from the third pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any order passed by the Commissioner (Appeals) under Section 35A of the Central Excise Act, 1944 read with sub-section 1(b) of Section 35B of the Act ibid and proviso thereto in the cases wherein goods have been exported out of India (except to Nepal and Bhutan) CEAC 11/2005 Page 2 of 7 without payment of duty? 2. The facts of the present case are that the respondent Assessee, which at the relevant time used to manufacture paints, varnishes and detergent powder, received substantial export orders from the USSR. It discharged its obligations, during the course of which it entered into arrangements with sub-contractors/job-workers who manufactured the pre-arranged quantity in their premises and paid duty. Later, they pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi (CESTAT) which had passed the impugned order on 25.09.2003. The CESTAT accepted its plea and set aside the findings of the authorities below. The CESTAT held in favour of the Assessee on the issue of ineligibility on account of the DEEC Scheme. Although, this was the ground of appeal urged at the time the Revenue approached this Court, substantial arguments on this aspect had not been addressed, and the CESTAT s findings are as below: 13. As we note from the Order in Original no. 125/01, the first discrepancy/deficiency is that certain duty paying documents were not furnished. The list also includes DEEC books shipping bill etc. We are unable to see the relevance of these documents to the refund claim in question. The credit ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s position, proviso to Section 35B(1) (d) clearly states that orders which relate to exports without payment of duty are excluded from the ambit of the appellate Tribunal s jurisdiction. On the other issue, i.e., the permissibility of credit, it is urged that existing notifications including Notification No. 214 of 1986 did not expressly provide for MODVAT credit in respect of clearance from premises of job workers or third party s premises. This was permitted by Notification No. 18/99-CE (NT) dated 28.02.1999 which apparently amended Rule 57F(4). In the circumstances, since there was absence of any such provision, the Assessee could not have been granted the benefit. 5. The learned counsel for the Assessee relied upon the permission gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment rejecting the Assessee s revision on 24.11.2003: 4. Govt. has carefully gone through the written and oral submissions. Govt. has also gone through the Orders-in-Original and Orders-in-Appeal. The applicant have not claimed rebate of duty on goods exported under Rule 12 or rebate of duty on excisable materials used in the manufacture of goods which are exported under rule 12 A of the Central Excise Rules, 1944 but they have claimed refund of the credit of the specified duty in respect of inputs used in the final products cleared for export under bond or used in the intermediate products cleared for export in terms of the proviso to Rule 57F (3) of the Central Excise Rules, 1944. Govt. feels that the applicant s refund claims fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that basis the exports were made and even the DEEC benefits were given. All that the job workers did was to put together all manufactured products which answered the specifications of the importers requirements in terms of the order given by the CESTAT in this case. In light of the difficulties faced by such exporters especially those relying upon third party manufacturers, in the absence of their capacity to deal with larger orders this rule enabled the authority to make such clearance order and also enabled claim of credit from 22.02.1999 onwards. 10. Having regard to these facts, the Court is of the opinion that larger interest of justice lies in not disturbing the order of the CESTAT. 11. For the forgoing reasons, the Court is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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