TaxTMI 
TaxTMI 
2011 (1) TMI 814
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....-10-2008 As the issue involved in all these revision applications is the same, so these are taken up together for disposal. 2. Brief facts of the cases are that the applicant namely M/s. Om Sons Cookware Pvt. Ltd., M/s. Punjab Stainless Steel Industries, and M/s. Dharam Industries are registered manufacture and exporter of S.S. Utensils/Kitchenware and claiming various rebate claims of duty paid on the inputs utilized in the manufacture of said S.S. Utensils/Kitchenware under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 which were sanctioned to the Applicants. The jurisdiction commissioner did not accept these orders and reviewed the same under Section 35E(2) of the Central Excise Act, 1944 and filed the respective appeals on the ground that the duty to be rebated under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 as amended has been specified in the explanation to the said Notification which read as under :- Duty means for the purpose to this notification, duties of excise collected under the following enactment, namely :- (a) the....
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.... in the case of CCE, Gurgaon v. Simplex Pharma (P) Ltd. [2008 (229) E.L.T. 504 (P&H)]. 3.2 The Applicant request that the rebate is permissible on facts and in law irrespective of any distinguishingly an individual case. The Applicant crave leave refer and rely upon the grounds urged before the lower authorities. The Applicants also crave leave to add any new grounds or amend any grounds at the time of personal hearing. Finally the Applicants respectfully submit that the rebate of the CVD paid is admissible and pray that the impugned order may be set aside. 4. The Personal hearing in the case matter was scheduled for 22-10-2010 and 13-12-2010 Ms. Reena Khair Advocate appeared for hearing on 13-12-2010 who reiterated the grounds of the Revision Application as already filed for on behalf of all the above applicants. 5. Government has considered both oral and written submissions of the applicant. Govt. has also perused the orders passed by the lower authorities and case laws cited by the applicant. 6. Government observes that the issue to be decided is whether the Countervailing Duty (CVD) (Additional duty) leviable under Section 3 of the Customs Tariff Act, 1....
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....having reference to duty of Central Excise or the additional duty under Section 3 of the Customs Tariff Act, 1975. Since Rule 57F(13) mentions the wording "Credit of specified duty in respect of Inputs so used....... "and Rule 57F(14) states that no credit in sub-rule (13) shall be allowed if the exporters avail of drawback..........in respect of such duty, it is amply clear that the prohibition of Rule 57F(14) for grant of refund is only in respect of availment of drawback as regards the Central Excise duty or countervailing duty. There is no double benefit available to the manufacturer where only Customs portion of All Industry Rate of Drawback is claimed, if refund of unutilised credit is given, as no Modvat (now Cenvat) credit facility is permissible for customs duties suffered on imported inputs. Denial of refund of Modvat credit of Excise/Countervailing duty paid on inputs relating to export products, if this cannot be used otherwise, will this not only act harshly on the exporters, it will not be in accordance with the provisions of the modvat rules. 5. It is, therefore, clarified that where only customs portion of duties is claimed as per the all industry rate of draw....
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....o set right the anomaly in the Rules as discussed in above Paras. Similar type of situation was created at the time of levy of Education Cess as the Education Cess is levied from 9-7-04 in terms of Sections 91, 92 and 93 of the Finance Act, 2004. However, the Education Cess has been included in explanation to the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, 20/2004-C.E. (N.T.), dated 6-9-04 & 21/2004-C.E. (N.T.), dated 6-9-04 vide Notification No. 28/2004-C.E. (N.T.), dated 21-10-04, 29/2004-C.E. (N.T.), dated 21-10-04 & 30/2004-C.E. (N.T.), dated 21-10-04 respectively. The applicants throughout India filed the rebate of Education Cess from date of its levy i.e. from 9-7-04. But the department rejected the claim for the period from levy of education cess to issue of Notification No. 28/2004-C.E. (N.T.), dated 21-10-04. Finally this matter was settled by the Hon'ble High Court of Rajasthan in the matter of M/s. Banswara Syntex Ltd. v. Union of India [2007 (216) E.L.T. 16 (Raj.)]. Vide the above judgment, Hon'ble High Court has decided that the amendment in rebate Notification adding education cess as duty of excise clariflcatory in nature. Hence, the Rebate of education ces....
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....(2) of Central Excise Act, 1944". The relevant paras 10 & 11 of the said judgments are reproduced below for ready reference : "Para 10 : From the perusal of Section 11B, it is clear that any person claiming refund of any duty of excise may apply for refund of such duty in such form and manner as may be prescribed along with such documentary or other evidence to establish that the amount of duty of the excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to say other person. Proviso (A) to sub-section (2) of Section 11B further provides that if the competent authority is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable he may make an order accordingly and the amount so determined instead of being credited to 'The FUND' be paid to him if such amount is relatable to rebate on duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India. Explanation (A) of Section 11B of the Central Excise Act, 1944 has further clarified the issue "refund" includes rebate of ....
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.... Credit on the CVD/additional duty paid by him at the time of import of raw material and if he had availed the Modvat/Cenvat Credit, then he would have got the refund of the same under the provisions of Section 11B (2). Once the eligibility of the applicant for the benefit of Modvat/Cenvat Credit on the CVD paid by him is not disputed by the Revenue then in that case the applicant is entitled to payment/refund of the said amount under Section 11B(2) of the Act." The above judgments is not only on identical issue but laid down a clear principal to be followed for settling the confusions/disputes which would have emerged and are pending for decision. Moreover, this recent judgment is directly from the Hon'ble High Court of the very jurisdiction which covers the area of noticees under reference. The ratio of said judgment is squarely applicable to this case as the identical issue is involved in both the cases. 14. In this regard, Govt. further observes that rebate/drawback etc. are export-oriented schemes and unduly restricted and technical interpretation of procedure etc. is to be avoided in order not to defeat the very purpose of such schemes which serve as export incentive t....