2016 (7) TMI 869 - CGOVT - Central Excise

Can a company claim rebate and drawback simultaneously? Legal battle ensues

The Commissioner (Appeals) allowed M/S Cipla Ltd.'s rebate claim on duty paid for exported goods, as they only availed the Customs portion of drawback. ... Condonation of delay - department has filed these revision application 4 days after initial stipulated three months period - Rebate / refund claim - export of goods - the original authority rejected the rebate in toto, on the ground that the applicant claimed simultaneous benefit of rebate and drawback which is not admissible. - Commissioner (Appeals) allowed the appeal by holding that as the respondent availed only Customs portion of drawback, rebate claim is admissible to them. Held that:- Government finds that the applicant in their application for condonation of delay has in a general manner mentioned that the delay in filing is due to postal delay even though application was serf by speed post and over burdening of their review section as reason for delay in filing the Revision Application. The applicant has failed to give any documentary evidences in support of their claim for the delay in filing of appeal. Under such circumstances, Government is of the considered opinion that onus to show cause for not filing application is on the applicant who has failed to show sufficient cause that prevented him from filing Revision Application within stipulated period of three months. The Revision Application has been made contrary to the provisions of Section 35EE (2) and is, therefore, liable for rejection. Decided against the revenue. Issues:1. Admissibility of rebate claim on exported goods.2. Simultaneous benefit of rebate and drawback.3. Filing of Revision Application beyond the stipulated period.Admissibility of Rebate Claim on Exported Goods:The case involves a dispute regarding the admissibility of a rebate claim filed by M/S Cipla Ltd. Mumbai for duty paid on the export of goods under Rule 18 of Central Excise Rules, 2002. The original authority held that the rebate claim is admissible at a certain rate for goods cleared for home consumption but rejected the claim entirely due to the simultaneous benefit of rebate and drawback claimed by the applicant. The Commissioner (Appeals) allowed the appeal, stating that as the applicant availed only the Customs portion of drawback, the rebate claim is admissible. The Department filed a revision application before the Central Government challenging this decision.Simultaneous Benefit of Rebate and Drawback:The Department argued that the claimant, M/S Cipla Ltd., claimed both rebate of duty paid on exported goods and duty drawback with the Customs Authorities, which is not permissible. The Department cited Customs and Central Excise Duties Drawback Rules, 1995, which state that duty drawback is not admissible if Cenvat Credit is availed. The claimant was required to certify that they have not availed Cenvat credit to claim duty drawback. Therefore, the Department contended that simultaneous availment of both benefits is not legally admissible.Filing of Revision Application Beyond the Stipulated Period:The Central Government examined the issue of the Department filing the Revision Application beyond the stipulated three-month period under Section 35EE (2) of the Central Excise Act, 1944. The Government noted that the Revision Application was filed four days after the initial three-month period. The relevant provisions state that the application must be made within three months from the date of communication of the order. The Government found that the Department failed to provide sufficient cause for the delay in filing the Revision Application, such as postal delay and internal administrative burdens. As a result, the Revision Application was deemed time-barred and rejected without delving into the merits of the case.