9911796707
TMI Blog2020 (3) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... se is that the appellants are registered under Central Excise as a manufacturer of excisable goods. Majority of goods manufactured by them are exported out of India under the claim of rebate or under exemption from payment of duty in view of Rule 19 of Central Excise Rules, 2002. After the export of goods, the appellants had regularly been filing the rebate claims during the period from May, 2011 to January, 2013. Fifteen such rebate claims totalling to an amount of Rs. 26,27,586/- have been sanctioned in their favour. However during an audit of the respondents/assessee's record in December, 2013 for a period from 2008-09 to 2011-12, Department observed that appellant is an EoU. Hence, the amount of rebate claimed and sanctioned to them was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of law as applicable for a 100% EoU unit. The assessee were thus not entitled to claim the rebate on the export goods. 4.1. Hence, the rebate claims which were initially sanctioned are erroneous. The recovery thereof was rightly been proposed and there is no infirmity in confirmation thereof vide the Order-in-Original, dated 31-8-2016. It is submitted that Commissioner (Appeals) has committed error while ignoring Section 5A(1A) of Central Excise Act that the goods manufactured by the noticee were exempted vide the Notification No. 24/2003 as such the assessee was not supposed to pay duty and claim rebate at a later stage. The order under challenge is, therefore, prayed to be set aside and appeal is accordingly prayed to be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appealable orders however, were also subject to review under Section 35E of the Central Excise Act, 1944 but the Department did not take recourse to the provisions under Section 35E(2) of the Act due to which no appeal, in furtherance of Section 35A of the Act, could have been filed against the said orders by the Department. As a result of this silence on the part of the Department, the aforesaid orders sanctioning the rebate claims stands to have attained finality. The correctness thereof has wrongly been challenged subsequently vide the impugned show cause notice. Law has otherwise been settled that once the order passed by the Adjudicating Authority under Section 11B of the Act granting refund of excise duty has attained finality. Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under Section 35E may not be necessary in such case. (ii) For refund/rebate claims involving an amount of Rs. 50.000/- but below Rs. 5 Lakhs, Order-in-Original should be issued by Deputy/Assistant Commissioner of Central Excise. These Order-in-Originals should be subjected to compulsory post audit at the level of Additional/Joint Commissioner (Audit). The Order-in-Original shall also be subjected to review under Section 35E. 8.4. All refund/rebate claim papers should be sent by the Divisional Deputy/Assistant Commissioner to the Commissionerate Headquarters [Additional/Joint Commissioner (Audit)] for post audit within a week of payment thereof irrespective of the amount involved." 6.3 It becomes clear from the above p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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