TMI Blog2020 (2) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Rules, 2002 - Notification No. 30/2004 is a conditional notification which allows the manufacturer to clear the goods at nil duty provided no credit is availed on inputs of capital goods under the provisions of the Cenvat Credit Rules, 2002. As per sub-clause (1A) to Section 5A of the Central Excise Act, 1944 in case of excisable goods which is fully exempt from payment of excise duty the manufacturer cannot be [levied] Excise duty. However, in the facts of the case it is noticed that organic cotton yarn is exempt under Notification No. 30/2004-C.E., dated 9-7-2004 under a conditional notification which the petitioner has not fulfilled - It is the choice of the manufacturer whether to opt for the benefit of one of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order Nos. 195 196 of 2013, dated 28-2-2013 passed by the first respondent and consequently direct the second respondent to sanction the rebate claim of ₹ 3,70,129/-. 2. The petitioner who is a manufacturer of 100% Organic Cotton Yarn had exported goods during August to September 2009 and filed a rebate claim under Rule 18 of the Central Excise Rules, 2002. The rebate claim filed by the petitioner amounting to ₹ 3,70,129/- was sought to be denied by the Deputy Commissioner by issuing show cause notice dated 31-5-2010. 3. The show cause notice proceeded on the assumption that the exported goods namely 100% Organic Cotton Yarn manufactured and exported by the petitioner was exempted from payment of excise duty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the respondents submit that the impugned Order is well reasoned and require no interference and therefore submits that the present writ petition is liable to be dismissed. The Learned Counsel for the Revenue also submits that the revision petition filed by the Revenue in Valli Textile Mills pursuant to the dismissal of the appeal by CESTAT has answered the issue in favour of the Revenue in the context of the very same notifications which are subject matter of the present writ petition. He drew my attention to the Paragraph 9.2 which is reproduced below : 9.2. The sub-rule (3) (i) (ii) of Rule 11 of Cenvat Credit Rules, 2004 clearly stipulates that if a manufacturer opts for exemption from whole of duty of excise leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he First Respondent to await the Order of the CESTAT in Valli Textiles case supra possibly an order would also have been passed and therefore the present writ petition is infructuous. However, there are no documents to substantiate the same at this point of time. The Learned Counsel for the petitioner also submits that no further orders have been passed pursuant to the remand. 9. I have considered the arguments advanced on behalf of the petitioner and the respondents. 10. The petitioner has exported 100% Organic Cotton Yarn which are classifiable under sub-heading No. 5205.11 of the Central Excise Tariff Act, 1985. There are two notifications exempting the said Organic Cotton Yarn. The petitioner claims to have paid excise duty at a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer could clear the goods without payment of duty provided condition there are more satisfied. As per the proviso to the said notification the notification does not apply to goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the Cenvat Credit Rules, 2002. 16. The petitioner has opted to pay Excise duty in terms of the Notification No. 29/2004-C.E., dated 9-7-2004. Therefore, it cannot be said that the organic cotton yarn exported by the petitioner was not liable to Excise duty so as to deny the benefit of rebate claim under Rule 18 of the Central Excise Rules, 2002. 17. Notification No. 30/2004 is a conditional notification which allows the manufacturer to clear the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise duty paid by the petitioner on the exported goods under Rule 18 of the Central Excise Rules, 2002 cannot be sustained. 24. These had been a denial of legitimate export incentives namely rebate of Central Excise duty paid on the excisable goods. Respondents have wrongly denied to the petitioner a legitimate export incentive. Therefore, the impugned order requires to be interfered. 25. Accordingly, the writ petition stands allowed with the consequential relief to the petitioner. The 2nd respondent is therefore directed to pay the rebate of excise duty paid on the exported organic cotton yarn within a period of 45 days from the date of receipt of copy of this order together with interest under Section 11BB of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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