TMI Blog2018 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reliefs viz. the Rebate of duty u/Rule 18 or Export without payment of duty u/Rule 19, which ought to have been allowed or the rebate of cash refund when once the duty has been paid by debit to CENVAT account u/R.18 ought to have been given. Both the reliefs could not have been simultaneously denied to the assessee on a combined and harmonious reading of Rules 18 and 19. The present case is a glaring example of such misuse of power by the authorities below. The impugned order therefore deserves to be set aside by imposing exemplary personal costs on all the three authorities below namely, the Asst. Commissioner of Central Excise (E-1) Division, Bangalore, the Commissioner of Central Excise (Appeals-1), Bangalore, and the Joint Secretary to the Government of India. The petition is allowed with exemplary costs quantified at ₹ 50,000/-. - WRIT PETITION No.15127/2016 (T-EXICSE) - - - Dated:- 24-9-2018 - Dr. VINEET KOTHARI J. Petitioner (By mr. M.S. Nagaraja, Adv.,) Respondents (By Mr. Jeevan J. Neeralgi, Adv., for R1 to R4) ORDER Mr. M.S. Nagaraja, Adv. for Petitioner Mr. Jeevan J. Neeralgi, Adv. for R1 to R4 1. The petitioner-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. Explanation . Export includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. The detailed conditions and procedure relating to export without payment of duty has been provided under Notification NO.42/2001-CE(NT) dated 26-06-2001. As such, the export of goods without payment of duty is covered by different set of rule and Notification on compliance of conditions and procedures prescribed therein. 8.1 However, in this case the applicant has claimed rebate of duty under Rule 18 of Central Excise Rules 2002. The said Rule 18 reads as under: (1) Any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Vs Dharmendra Textile Processors 2008(231) ELT (SC). Also it is settle that a notification has to be treated as a part of the statute and it should be read along with the Act as held in case of CCE Vs Parle Exports (P) Ltd. 1998(38) ELT 741(SC) and Orient Weaving Mills Pvt. Ltd. Vs UOI 1978(2) ELT 311(SC) (Confiscation Branch). Government also finds support from the observations of Hon ble Supreme Court in the case of M/s ITC Ltd. Vs. CCE reported as 2004 (171) ELT-433 (SC), and M/s Paper Products Vs CCE reported as 1999 (112) ELT 765 (SC) that the simple and plain meaning of the wordings of statute are to be strictly adhered to. As such there is no force in the plea of the applicant that the lapse should be considered as a procedural one which is condonable in nature. As such, as the applicant did not follow the requirements of the Notification No.19/2004/CE(NT), the rebate claims are rightly held inadmissible. 9.1 The applicant has also alternatively requested for re-credit of cenvat credit. In this regard, Government notes that re-credit is allowed in the cases where the exporter was not required to pay duty at the time of export, however, he pays the same. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner . 6. A bare perusal of the impugned order shows the utter confusion of the Respondent - Revisional authority when he seeks to quote R.19 in para-8 of the order, he actually quotes R.18 but in para-8.1, when he seeks to quote R.18, he actually quotes R.19. This cannot be taken as a simple typographical error by a senior officer of the Department dealing with the matter in the third round of litigation by the assessee. This on the other hand, reflects the lack of understanding on the part of the said authority in applying both the Rules on a harmonious reading of the said Rules. 7. When the fact of export by way of supplying to SEZ unit is not in dispute and the fact of payment of duty by debiting the CENVAT account is also not in dispute, there is no question of denying one of the reliefs viz. the Rebate of duty u/R.18 or Export without payment of duty u/R.19, which ought to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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