TMI Blog2008 (7) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... Dave for the Respondent. [Order per : D.A. Mehta, J.] - This petition has been filed by the Commissioner, Central Excise Customs, Vadodara II, challenging the legality and validity of order No.01-03/2004 dated 16.1.2004 made by Government of India in Revision Application filed by the respondent herein. 2. The respondent (hereinafter referred to as "the assessee") is engaged in the manufacture of goods which are exported out of India. It is an accepted position that the goods so manufactured by the respondent are excisable goods. It is also an accepted position that in case of duty paid excisable goods where such goods are exported outside India, rebate of the duty paid is available, provided the Central Government issues a notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide impugned order dated 16.1.2004. The reasons which have weighed with the revisional authority are -(1) An exemption by means of notification does not take away the levy or have the effect of erasing duty as held by the Apex Court in the case of Hico Products Ltd. v. CCE , 1994 (71) E.L.T. 339; (2) Where an assessee chooses not to avail of an exemption granted under the notification, it cannot be stated that the assessee is exercising an option; (3) That, in effect, by virtue of the duty levied as prescribed by the Tariff Act and the exemption granted by a notification, two rates of duty are prescribed and the exemption granted cannot be more than the duty prescribed in the statute and will be at the most 'Nil'; (4) Various decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods on which duty is leviable, can claim rebate of duty paid without availing of exemption granted under a notification. Rule 12 of the Rules prescribes the mode and manner in which rebate of duty can be claimed and granted. Sub-rules (3) and (4) of Rule 12 of the Rules provide for the grounds on which rebate of duty can be denied. Under sub-rule (3), rebate of duty in respect of excisable materials used in manufacture of goods exported outside India can be denied, provided the conditions therein are shown to be satisfied. Under sub-rule (4), similarly, a claim for rebate may be rejected, provided goods, export of which is prohibited under any law for the time-being in force, are duty paid and exported. No other provision is pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed by the statute: (1) As per the Tariff Act, and (2) As per the exemption notification. An assessee may pay duty, in such circumstances, either at the prescribed rate or at the rate specified in the exemption notification. Revenue cannot insist, unless the statute provides for such a situation, that in such a factual matrix, an assessee is bound to claim exemption while manufacturing excisable goods. The fallacy in the stand of Revenue is exposed when one tests the proposition in a case where only partial exemption is granted under a notification. 10. The impugned order made by the revisional authority does not, in any manner, give rise to an issue of law so as to manifest an error in law calling for intervention by the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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