TaxTMI 
TaxTMI 
2010 (4) TMI 878
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....d by the Lower Authority vide his rebate sanction orders (as mentioned in column no. 06 of the table given below : TABLE Sl. No. Appeal File No. Order No. & Date confirming demand Amount of demand confirmed as erroneous cash rebate (Rs.) Amount of Penalty imposed (Rs.) Rebate claim sanctioned earlier vide order No. & D (1) (2) (3) (4) (5) (6) 01 V2/143/RAJ/2007 R/744/2007 30-5-07 1,19,731 10.000 R/129/2006 28-4-06 02 V2/144/RAJ/2007 R/759/2007 31-5-07 1,08,003 10.000 R/130/2006 28-4-06 03 V2/145/RAJ/2007 R/762/2007 31-5-07 59,518 10.000 R/129/2006 28-4-06 04 V2/146/RAJ/2007 R/763/2007 31-5-07 1,19,056 10.000 R/140/2006 2-5-06 05 V2/147/RAJ/2007 R/764/2007 31-5-07 46,592 10.000 R/177/2006 4-5-06 06 V2/148/RAJ/2007 R/765/2007 31-5-07 56,175 10.000 R/178/2006 4-5-06 07 V2/149/RAJ/2007 R/766/2007 31-5-07 1,29,179 10.000 R/191/2006 17-5-06 08 V2/150/RAJ/2007 R/767/2007 31-5-07 96,425 10.000 R/279/2006 13-6-06 09 V2/151/RAJ/2007 R/768/2007 31-5-07 1,36,395 10.000 R/280/2006 2....
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....he excess payment of rebate in excess of 8% is recoverable from them under Section 11A read with Section 11D of the Central Excise Act, 1944. (iii) Since the applicant knowingly and willfully paid the amount in excess of duty required to be paid for the goods to be exported under claim of rebate in order to encash the excess credit available with them, they are liable for penal action under Rule 27 of the Central Excise Rules, 2002. 2.4 The Show Cause Notices were adjudicated by the Lower Authority after giving opportunity to the applicants, vide orders (as mentioned in column no. 3 of the above table) wherein he confirmed the demand of erroneously granted cash rebate in excess of 8% under Section 11A read with provisions of Section 11D of the Central Excise Act, 1944 and imposed penalty under Rule 27 of the Central Excise Rules, 2002. 3. Aggrieved by these order-in-original, the applicant filed appeals with the Commissioner (Appeals) who vide his impugned Orders-in-Appeal upheld the Orders-in-Original but sets aside the penalty imposed on the applicant. 4. Aggrieved by these Order-in-Appeal, the applicant has filed their revision application ....
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....bsp; Board Circular has Clarified the Issue The Board has also clarified this situation vide the Board's Circular No. 510/06/2000, dated 3-2-2000. While guiding in the similar issue, the Board has clarified that the rebate sanctioning authority should not examine the correctness of assessment but should examine only the admissibility of rebate of the duty paid on the export goods covered by a claim. Further, the Board has also clarified that, since there is no need to reducing rebate, the question of taking of re-credit in RG23 A Pt. II or RG 23 C Pt. II do not arise. Thus it is clarified that, the rebate shall be granted of duty paid and not duty payable. (C) Precedent are in Favour of the Applicant (i) We respectfully pray your honour to consider the following case, which is the direct judgment in issue : Bharat Chemicals v. CCE, Thane reported in 2004 (170) E.L.T. 568 (T-Mum.) wherein the Bench has held that, "4. We are inclined to accept the applicant's claim. Rule 12 of Central Excise Rules....
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....o the applicant, than why the duty shall not be rebated if the applicant is paying excess duty? There is no case to allege that the applicant has extracted extra duty. The applicant has only paid from the Cenvat account, which is accumulated credit. (a) The applicant could have followed the procedure appended to Notification 43/2001-C.E. (N.T.) and procure the goods without payment of duty. In such circumstances the applicant need not have the burden of duty paid on raw material. (b) The applicant could have followed the procedure appended to Notification 21/2004-C.E. (N.T.) and get the rebate of full duty paid on the raw material consumed in export goods. In these circumstances also the applicant need have burden of duty paid on raw material. (c) The applicant could have followed the procedure of Rule (5) of Central Excise Rules, 2004, and could have exported the goods under UT-1/Bond and could get the rebate of accumulated credit. &nb....
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....iginal as mentioned in column No. 6 of the table which sanctioned the refund claim initially of the duty paid at the time of export of the goods. Department did not prefer any appeal against the said order. So the same has attained finality and further order issued are liable to be set aside. In this regard, it is observed that rebate claim was sanctioned initially vide orders-in-original as mentioned in column no. 6 of the table. Subsequently, Asstt. Commissioner issued show cause notices proposing to deny the excess rebate and to further recover the amount of excess rebate given. Asstt. Commissioner confirmed the demands vide order-in-original as mentioned in column no. 3 of the table which was upheld by Commissioner (Appeal). Applicant has contended that as per CBEC Circular No. 423/56/98-CX., dated 22-9-98 (F.No. 387/78/98-JC) issue of show cause notice for recovery of erroneously refund should follow the review of the order sanctioning refund. They have further relied upon the Hon'ble CESTAT Final Order No. 930/06 dated 19-5-06 in the case of Voltas Ltd. v CCE, Hyderabad reported as 2006 (202) E.L.T. 355 (T.-Bang.) wherein it has held that "Demand- erroneous refund-order of As....
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....d the said judgment. Further CESTAT has followed the said judgment in the case of Bharat Box Factory Ltd. v. CCE, Ludhiana (supra) [2005 (183) E.L.T. 461 (Tri. - Del.)]. Therefore, Government finds no reasons to disagree with the findings of Commissioner (Appeals) in this matter. 9. So far as the question of "Precedent (Para 4.1(c) above) is concerned, Government is of the opinion that each case is to be dealt with proceeded to and is to be decided on individual facts, merits and principals of proper justice so as to support and uphold the sanctity of constitutional validity of law as per statutory legal provisions. The "Precedents" are to be judiciously applied in such a way that the proceedings should not be directed towards and in support of any unconstitutional/invalid order. The guiding factor in such situations should be as per "Hon'ble Supreme Court in para 10 of the judgment in the case of Escorts Ltd. v. CCE, Delhi-II [2004 (173) E.L.T. 113 (S.C.)] observed, inter alia, that one additional or different fact may make a word of difference between conclusion of two cases, and in para 11 further inferred as following :- "11. The following words of Lord Denning ....