2009 (11) TMI 650

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....licant imported 'Isoprenyl Aluminum' and an excess quantity lying with them was re-exported to the overseas supplier vide shipping bill No. 527839 dated 14-11-2002. The appellants while importing had paid countervailing duty (CVD) and had availed cenvat credit under the provisions of Cenvat Credit Rules. At the time of export they had paid the duty through Cenvat account and claimed rebate thereof under Rule 18 of the Central Excise Rules, 2001/2002. The adjudicating authority rejected the rebate claim on two grounds, i.e. (i) an amount paid by the appellants at the time of export of Isoprenyl Aluminum was not duty paid but it was reversal of an amount of proportionate cenvat credit availed in terms of Rule 3(4) of Cenvat Credit Rules, 2001....

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.... on record by the appellate authority. (ii)    It is submitted that the Commissioner of Central Excise failed to appreciate that if the applicants had also claimed the drawback of the CVD/Excise duty paid on the said consignment on its re-export, the Customs should have refunded both the Basic customs duty as well as the CVD/Excise duty, whereas it has been shown to the appellate authority that the Customs have refunded 98% of the Basic Customs duty only by way of DEPB Licence, and advised the applicants to approach the excise authority for refund of the CVD/excise duty paid on the consignment. (iii)   The applicants had very clearly submitted the factual position that when they approached the customs at JNPT ....

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....sis, arbitrarily held that the applicants have availed the benefit of duty drawback/rebate in respect of the CVD/Excise Duty paid at the time of re-export. (iv)   It is submitted that what the Commissioner of Central Excise (Appeals), required the applicants to prove was the negative which cannot be proved. It is clear from the fact that since Joint DGFT issued DEPB Licence only for Rs. 8,13,988/- the applicants have not claimed any drawback from the Customs Department in respect of CVD/Excise Duty paid on re-export of the aforesaid Isoprenyl. (v)     It is submitted that the rejection by the Commissioner of Central Excise (Appeals) of the refund claim on the purported ground that the goods had been expor....

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....l. Commissioner of Customs vide letter F.No. S/6-GEN- 121/2002/DEPB(v) dated 6-12-2002 requested the Joint Director General of Foreign Trade, Mumbai to allow the applicant re-credit 98% of the DEPB amount in terms of CBEC Circular No. 75/2002-Cus., dated 11-9-2002 as requested by the applicant. There is nothing on record whether the applicant applied for the refund of the CVD/Excise duty with the customs authorities or whether they got the refund of the CVD amount or not. The above quoted letter is also silent on this aspect. 8. Govt. further observes that the instant case is of re-export of raw material imported by the applicant which could not be utilized by them in the manufacture/processing of their finished goods. The applicant....