TMI Blog2015 (6) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has availed both Customs as well as Central Excise portion of drawback. Under such circumstances, allowing rebate would amount to double benefit, which cannot be held admissible. Revision application rejected - decided against applicant. - F. Nos. 195/1644-1646/2012-RA - 11-13/2015-CX - Dated:- 22-6-2015 - Ms. Rimjhim Prasad, Joint Secretary Shri R.K. Sharma, Counsel and Mangesh Jha, Executive (Legal) of R.K. Sharma Associates Pvt. Ltd., for the Assessee. Shri J.P. Singh, Assistant Commissioner, for the Department. ORDER These revision applications are filed by M/s. Padam Fashions, Mumbai (hereinafter referred to as the applicant) against the Orders-in-Appeal No. BR(56-58) M-V/12, dated 28-9-2012 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I with respect to Orders-in-Original No. 257/16/DC/KVL/2012, 258/16DC/KVL/2012, 259/16/DC/KVL/2012 all dated 13-4-2012 passed by the Deputy Commissioner of Central Excise, Kandivali Division, Mumbai-V. 2. Brief facts of the case are that the applicant, a manufacturer filed rebate claim in respect of excise duty paid on goods cleared for export through a merchant exporter, M/s. Fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants rely upon the judgment in the Munot Textiles, 2007 (207) E.L.T. 298 (GOI) in which it is held that even if drawback has been availed, yet, rebate shall be granted as there is no condition in the Notification for rejection of rebate claim when drawback has been availed. If there is any condition in the drawback rules for non-granting of drawback as rebate has been granted, granting of drawback can be termed as erroneous, but for that purpose rebate claim cannot be rejected. 4.3 The applicant has declared in ARE-I that they have not availed Cenvat Credit on input used in the manufacture of final product. Since, the applicant has not availed the credit of duty, duty at the time of removal of goods have been paid through Personal Ledger Account (PLA). Assuming without admitting that the appellants are not entitled to the rebate of duty paid, it is submitted that in such case, the duty paid is in excess of the duty payable. There have been lot of cases where duty has been paid on CIF value as against duty payable on FOB value. The department has permitted re-credit of the excess duty paid in the Cenvat account in the decisions in case of RSWM Ltd., 2012 (281) E.L.T. 735 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission was also made at the time of hearing where in reliance was placed on following case laws : M/s. Four Star Industries, GOI Order No. 11/2014-CX, dated 3-1-2014 [2014 (307) E.L.T. 200 (G.O.I.)], M/s. Benny Impex Pvt. Ltd. [2003 (154) E.L.T. 300 (GOI)] M/s. Hi Speed Offsets [2014 (303) E.L.T. 316 (GOI)]. Shri J.P. Singh, Assistant Commissioner, Mumbai-IV represented the respondent Department made a written submission wherein it is stated that the Order of Commissioner (Appeals) be upheld, otherwise, it would amount to double benefit. 7. Government has carefully gone through the relevant case record and perused the impugned Orders-in-Original and Orders-in-Appeal. 8. On perusal of case records, Government observes that the rebate claims of the applicant have been rejected on the grounds that the merchant exporter in these impugned cases availed drawback on impugned exports and as such allowing rebate would amount to double benefit. Commissioner (Appeals) upheld impugned Orders-in-Original. Now, the applicant has filed these Revision Applications on grounds mentioned in Paras (4) above. 9. Government observes that the applicant exported the goods through merc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Court and provisions of Rule 18 of Central Excise Rules, 2002. In these cases, the applicant could not substantiate their claim that the merchant exporter has availed only Customs portion of drawback by means of any valid documentary evidences. Hence, it can be implied that the applicant has availed both Customs as well as Central Excise portion of drawback. Under such circumstances, allowing rebate would amount to double benefit, which cannot be held admissible. 11. Government notes that the C.B.E. C. has also clarified in its Circular No. 83/2000-Cus., dated 16-10-2000 (F. No. 609/116/2000-DBK) that there is no double benefit available to manufacturer when only Customs portion of All Industry Rate of drawback is claimed. The harmonious and combined reading of statutory provisions of Drawback and rebate scheme reveal that double benefit is not permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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