TMI Blog2018 (11) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... the export goods subject to certain procedure /permission. The appellant have scrupulously followed the procedure and also obtained the permission, only after compliance thereof the rebate was sanctioned, since, in view of this position, it is not permissible in law to import any extraneous conditions of some different Notification into the provision of rebate and rebate cannot be rejected for that reason. Also, the appellant have claimed the rebate only in respect of indigenously procured raw material on which no benefit of N/N. 96/2009-Cus was availed, therefore, on this fact even the allegation in the show cause notice even though it is not sustainable as irrelevant with the sanction of rebate claim under Rule 18. The appellant was legally entitled for rebate claim even if there is any violation of conditions of Notification No. 96/2009-Cus if any - the order for recovery of the said rebate claim is absolutely illegal and not tenable - appeal allowed - decided in favor of appellant. - Appeal No. E/10314/2016-DB - Final Order No. A/12547/2018 - Dated:- 2-11-2018 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Shri. Willingdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition to the effect that any violation of Notification No. 96/2009-Cus is made then rebate will not be granted, therefore, importing the contravention of different Notification No. 96/2009- Cus for disallowing the rebate claim under Rule 18 is without authority of law. He submits that the sanction of rebate is in respect of three raw materials was on the basis of valid permission granted by the jurisdictional Deputy Commissioner who after verifying factual position of the nature of raw material, use in the finished goods and input output ratio granted the permission and on that basis rebate claim was sanctioned. He submits that the permission order holds the field even today, as it has not been challenged before nor set aside by, in appropriate Appellate Authority. Consequently, in view of the said permission order having attained finality, the impugned order cannot sustain being illegal, without jurisdiction and beyond authority of law. He further submits that the whole exercise in this case is Revenue neutral. Even by the stretch of imagination, the appellant is hold to be not entitled to avail export rebate, they would be otherwise entitled to claim the refund of the Excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether said contraventions will affect the eligibility of rebate to the appellant, we reproduced the Rule 18. 18. Rebate of duty.- Where any goods are exported, the 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 and 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. For the purposes of this rule, export , with its grammatical variations and cognate expressions, means taking goods out of India to a place outside India and includes shipment of goods as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraf Notification No. 21/2004-CE (NT) dated 6.9.2004, Rebate of duty on excisable goods used in manufacture/ processing of export goods - Procedure - Notification No. 41/2001-C.E. (N.T.) superseded In exercise of the powers conferred by of rule 18 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance, Department of Revenue, notification No. 41/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise may permit a manufacturer to remove the materials as such or after the said materials have been partially processed during the course of manufacture or processing of finished goods to a place outside the factory - (a) for the purposes of test, repairs, refining, reconditioning or carrying out any other operation necessary for the manufacture of the finished goods and return the same to his factory without payment of duty for further use in the manufacture of finished goods or remove the same without payment of duty in bond for export, provided that the waste, if any, arising in the course of such operation is also returned to the said factory of the manufacture or process; or (b) for the purpose of manufacture of intermediate products necessary for the manufacture or processing of finished goods and return the said intermediate products to his factory for further use in the manufacture or process of finished goods without payment of duty or remove the same, without payment of duty for export, provided that the waste, if any, arising in the course of such operation is also returne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on export goods. To The Superintendent of Central Excise, (Address) ___________________ (full postal address) Particulars of the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise from whom rebate shall be claimed/with whom bond is executed and his complete postal address __________________. 1. I/We ______________ of ________________ propose to export the under mentioned goods (details of which are given in Table 1 below) to ____________________ (country of destination) by *air/sea/land/post parcel* under claim for rebate of duty paid on excisable materials used in the manufacture and packing of such goods. 2. *The finished goods being exported are not dutiable. 3. or We intended to claim the rebate of Central Excise Duty paid on clearances of goods for export under notification No. 19/2004-Central Excise (N.T.), dated the 6th September, 2004 issued under Rule 18 of Central Excise Rules, 2002. or The export goods are intended to be cleared without payment of Central Excise Duty under notification No. 42/2001-Central Excise (N.T.), dated the 26th June, 2001 issued under Rule 19 of Central Excise (No. 2) Rules, 2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) (7) (8) (9) (10) (11) (12) (13) (14) Declaration : (a) We hereby certify that we have not availed facility of CENVAT credit under CENVAT Credit Rules, 2002. (b) We hereby declare that the export is not in discharge of export obligation under a Value based Advance License issued prior to 31-3-95. (c) We hereby declare that the materials on which input stage rebate in claimed are not sought to be imported under a Quantity Based Advance License issued prior to 31-3-95. (d) We further declare that we shall not claim any Drawback on export of the consignment covered under this application. (e) I/We hereby declare that the above particulars are true and correctly stated. (f) We have been granted permission by Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise Vide C.No. __________ date __________ for working under Notification No. 21/2004- Central Excise (N.T.), dated the 6th September, 2004. Time of Removal __________________ Signature of owner or his authorised agent with date Name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Note 4 : The original, duplicate and Quintuplicate shall be returned to the manufacturer for presenting to the Customs Officer. PART B Certification by the Officer of Customs Certified that I have examined the consignment described overleaf and the seals on the packages were found intact and I have satisfied myself that particulars of the consignment are as specified overleaf except for the shortages mentioned below : 1. ___________________________________________________________ _____ Certified that the exports are not under Duty Drawback Scheme. It is further certified that exports are not in discharge of export obligation under Value Based Advance License or a Quantity Based Advance License issued before 31-3-95. 2. Certified that all copies of Shipping Bill/Bill of export contain endorsement of A.R.E. 2 No. in the space provided for indicating ARE 1. 3. Certified that the consignment was shipped under my supervision under *Shipping Bill No./Bill of Export No. ____________ dated _______________ which left for _________________ on _________________ which passed the frontier on ____________ 4. Duplicate copy of A.R.E. 2 Forwarded to Assistant/Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exports of the resultant product in cases where import takes place after fulfilment of export obligation; or (c) the description and other specifications where applicable of the imported materials and the description, quantity and value of exports of the resultant product in cases where import takes place before fulfilment of export obligation; (iii) that the materials imported correspond to the description and other specifications where applicable mentioned in the authorisation and the value and quantity thereof are within the limits specified in the said authorisation; (iv) that in respect of imports made before the discharge of export obligation, the importer at the time of clearance of the imported materials executes a bond with such surety or security and in such form and for such sum as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, binding himself to pay on demand an amount equal to the duty leviable, but for the exemption contained herein, on the imported materials in respect of which the conditions specified in this notification are not complied with, together with interest at the rate of fiftee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... si or through any of the Inland Container Depots at Agra, Ahmedabad, Anaparthy (Andhra Pradesh), Babarpur, Bangalore, Bhadohi, Bhatinda, Bhilwara, Bhiwadi, Bhusawal, Chheharata (Amritsar), Coimbatore, Dadri, Dappar (Dera Bassi), Daulatabad (Wanjarwadi and Maliwada), Delhi, Dighi (Pune), Durgapur (Export Promotion Industrial Park), Faridabad, Garhi Harsaru, Gauhati, Guntur, Hyderabad, Jaipur, Jallandhar, Jamshedpur, Jodhpur, Kanpur, Karur, Kota, Kundli, Loni (District Ghaziabad), Ludhiana, Madurai, Malanpur, Mandideep (District Raisen), Miraj, Moradabad, Nagpur, Nasik, Pimpri (Pune), Pitampur (Indore), Pondicherry, Raipur, Rewari, Rudrapur(Nainital), Salem, Singanalur, Surat, Surajpur, Tirupur, Tuticorin, Udaipur, Vadodara, Varanasi, , Waluj (Aurangabad) or through the Land Customs Station at Agartala, Amritsar Rail Cargo, Attari Road, Changrabandha, Dawki, Ghojadanga, Hilli, Jogbani, Mahadipur, Nepalganj Road, Nautanva (Sonauli), Petrapole, Ranaghat, Raxaul, Singhabad and Sutarkhandi or a Special Economic Zone notified under section 4 of the Special Economic Zones Act, 2005 (28 of 2005) : Provided that the Commissioner of Customs may with in the jurisdiction , by special order, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to a merchant exporter, any bond required to be executed by the importer in terms of this notification shall be executed jointly by the merchant exporter and the supporting manufacturer binding themselves jointly and severally to comply with the conditions specified in this notification. 2. Where the materials are found defective or unfit for use, the said materials may be re-exported back to the foreign supplier within six months from the date of clearance of the said material or such extended period not exceeding a further period of six months as the Commissioner of Customs may allow : Provided that at the time of re-export the materials are identified to the satisfaction of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, as the materials which were imported. 3. Notwithstanding anything contained in this notification, the actual user condition specified in condition numbers (viii) and (x) shall not be applicable in respect of authorisation issued for import of raw sugar for imports made from the 17th February, 2009 till 30th September, 2009 and the export obligation may also be fulfilled by procuring white sugar from any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate was sanctioned, since, in view of this position, it is not permissible in law to import any extraneous conditions of some different Notification into the provision of rebate and rebate cannot be rejected for that reason. Similarly, by reading the Notification No. 96/2009- Cus there is no condition with reference to the rebate provision of Rule 18 and Notification No. 21/2004-CE. From the facts of the case it is undisputed that even by stretch of imagination it is interpreted that due to contravention of the condition of Notification No. 96/2009-Cus the rebate cannot be sanctioned. We find that the appellant have claimed the rebate only in respect of indigenously procured raw material on which no benefit of Notification No. 96/2009-Cus was availed, therefore, on this fact even the allegation in the show cause notice even though it is not sustainable as irrelevant with the sanction of rebate claim under Rule 18. Therefore, on both counts the adjudication authority has gravely arred in passing impugned order by which recovery of the sanctioned rebate was confirmed. The order of the adjudicating authority is without authority of law. As there is no provision in the statute to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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