TMI Blog2020 (1) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier of the goods is not within control of the appellant. The Department has not objected the payment of duty at the time of their clearance from the supplier s factory. In fact has suffer central excise duty at the declared value - The appellant has not taken anything other than the duty paid at the time of procurement of raw-material as cenvat credit, which after processing has been exported by a value addition at the end of appellant. Therefore, the appellant is rightly entitled to claim the rebate of the central excise duty paid at the time of their procurement from supplier/manufacturer - Also, customs department has not objected to the value declared by the appellant under the provisions of Customs Act at the time of export under Export Valuation Rule, 2007. The appellant is entitled for recredit/ refund of cenvat credit duty availed while exporting the goods through its 100% EOU and also the rebate as per declared violation for export made as merchant exporter - Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 75200 of 2017 - FINAL ORDER NO.76988/2019 - Dated:- 18-12-2019 - HON BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND HON BLE SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position that the Export Oriented Units were not required to discharge excise duty on the exports. And accordingly, the appellant requested for allowing of red-credit of duty already paid by it at the time of export, which was denied by the Jurisdictional Superintendent vide letter dated 27.07.2009. The department was of the view that 100% EOU was fully exempt from payment of duty in view of Notification No. 24/2003-CE dated 31.03.2003 the appellant has deliberately paid the duty in order to avail the extra benefit by way of rebate under Rule 18 of the Central Excise Rules as alleged the valuation of the mouth freshener at the hand of supplier M/s Bika Distributor was inflated. Accordingly, the impugned show cause notice dated 30.01.2012 was issued to the appellant for denial of rebate claim by the appellant. However, the issue raised in the show cause notice the rebate of ₹ 39,64,003/- out of total rebate claim of ₹ 52,18,473/- filed by the appellant as merchant exporter was under Rule 18 of 2002 Rules was denied on the ground that the supplier has overvalued the mouth freshener meant for export falling the valuation under Section 4A of the Excise Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. The adjudicating authority has reduced the rebate claim taking into consideration of price reflected. Return filed before the sale tax authorities. Accordingly, he is of the opinion that the impugned order is without any infirmity and required to be sustained in appeal. 6. We have considered the submissions made by the learned Advocate on behalf of the appellant and learned AR on behalf of the Revenue. 7. The issue to be decided in this case is twofold, first being eligibility of exporting the goods of their 100% Export Oriented Units on payment of duty and subsequently claiming rebate. It is on record that the appellant has withdrawn their refund claim and made a request in writing to the Departmental officer to permit the re-credit of cenvat credit availed for the discharge of central excise duty while exporting the goods. This request was turned down by the Department as is evident from the letter dated 27.07.2009. We have seen the various case laws submitted by the appellant and there is no dispute regarding viability of duty free export by 100% EOU in terms of Notification No. 24/2003. As the appellant has paid the duty, which ought to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing has been exported by a value addition at the end of appellant. Therefore, the appellant is rightly entitled to claim the rebate of the central excise duty paid at the time of their procurement from supplier/manufacturer. We also find that customs department has not objected to the value declared by the appellant under the provisions of Customs Act at the time of export under Export Valuation Rule, 2007. Identical issue has come for consideration before us in case of Appeal No. 76343/2014 filed by one of the co-noticee. This appeal was decided vide Final Order No.F.O./76891/2019 dated 17.12.2019 wherein it is held as under; 5. We have considered the submissions made by learned Advocate on behalf of the Appellant and learned Departmental Representative on behalf of Revenue and also perused the appeal records. 6. The issue involved in this case is as to whether the Appellant has claimed any extra amount of rebate by over valuing their export product while exporting the same. The Appellant is merchant exporter, who has obtained the export goods from manufacturer/supplier at payment of duty as per the rate specified in ARE-1 and also in the excise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sand Seventy only) and Education Cess Secondary Higher Cess of 1,05,542/- (Rupees One Lakh Five Thousand Five Hundred Forty Two Only), had facilitated Ektara Export Pvt Ltd. to claim excess Cenvat duty rebate of ₹ 1,16,81,336/- (Rupees One Crore Sixteen Lakh Eighty One Thousand Three Hundred Thirty Six only) and Education Cess Secondary Higher Educatin Cess rebate of ₹ 3,50,441/- (Rupees Three Lakh Fifty Thousand Four Hundred Forty One only) 21.3 It is on record that Ektara Export Pvt Ltd. had purchased Mouth Fresheners from the Manufacturing Unit of M/s Vishal Distributors during the period 2008-09 and 2009-10 under 54 (Fifty four) numbers of ARE-1 for export and the duty amount of the said exported product was subsequently claimed as rebate of Central Excise Duty under Rule 18 of Central Excise Rules, 2002. 21.4 I also find from the statement of the authorisd representative of the Noticee No. 7 Shri Anupam Jha, the authorised representative of the said Noticee No. 7 had no knowledge how and where from M/s Vishal Distributors, the Noticee No. 4 had procured the raw material for manufacture of Mouth Freshener which was ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ₹ 1,20,31,807/- (Rupees One crore Twenty Lakh Thirty One Thousand Eight Hundred Seven only) during the period 2008-09 and 2009-10. 7. It was submitted before the Commissioner that the Appellant has procured the goods on the payment of excise duty and exported the same at a price slightly higher than the procurement price. It was submitted before the Commissioner that the price is not inflated. The manufacturer/supplier has determined the assessable value for the purpose of, payment of central excise at higher rate than the assessable value declared for the purpose of a payment of commercial tax, which is none of their concern. The exports were affected by the Appellant through the various shipping bills supported by ARE-1 and commercial invoices which were duly checked and verified by the Central Excise Officers and also the Custom Officer at the time of their export. The manufacturer/ supplier has sold the goods to the Appellant by adopting the value declared under Section 4A of the Act in terms of Notification No. 49/2008/CE (NT) dated 24.12.2008 issued under Section 4A of the Excise Act. The export value of the subject exported goods were not objected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty . There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit [2000 (38) RLT 179]. 8. Counsel appearing for the Revenue could not assail any of the findings recorded by the Tribunal. 9. That being the position, we agree with the view taken by the Tribunal and find no merit in these appeals which are dismissed leaving the parties to bear their own costs. 9. We also find that Hon ble Supreme Court in case of Om Overseas Limited vs. Union of India [2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is not to be denied because there is short payment. Benefit can be denied only if there is short payment by reason of fraud, collusion or any wilful mis-statement or suppression of facts. Once it has been held that there was no fraud, collusion or any wilful mis-statement or suppression of facts on the part of the party who was to pay the duty then the exporter cannot be denied rebate. 5.In this view of the matter, we are unable to sustain the impugned judgment of the High Court or of the order passed by Joint Secretary to the Government of India in the revision application. The appeal is accordingly allowed. It is held that the appellants will be entitled to rebate under the Notification. There will be no order as to costs. 10. Further we find that the Department has failed to produce any evidence regarding export price declared by the Appellant is at lower price than the contemporaneous export price. This aspect has been considered by Hon ble Supreme Court in case of Commissioner of Customs vs. Crown International Limited 2015 (325) ELT 462, wherein it is held as under; Respondents are merchant exporters. They purchased CD-R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is also an accepted fact that the respondents and foreign buyers are not related parties. 6. We find that all the aspects have been duly and rightly considered by the CESTAT. The analysis of the material is on factual aspect and no substantial question of law arises for consideration in the instant appeal. 7. The appeal is, accordingly, dismissed. Civil Appeal Nos. 3140-3143 of 2008 8. The appeals are dismissed in terms of the aforesaid order passed in Civil Appeal No. 1581 of 2007. We are, therefore, of the view that export price declared by the appellant cannot be discarded. 11. During the relevant time the Appellant was acting as merchant export or and has determined at the assessable value in terms of Section 14 of the Customs Act and Export Valuation Rules, 2007. It is not accepted of the merchant exporter to question the price declared by the supplier. The Department has not produced any evidence regarding the fact that the Appellant and the supplier has colluded with each other to inflate the value of export consignment. 12. Rule 18 of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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