TaxTMI 
TaxTMI 
2012 (10) TMI 266
X X X X Extracts X X X X
X X X X Extracts X X X X
...., during the course of review of the impugned order found that the lower authority has erred in sanctioning the rebate claim as the goods were exported under claim of rebate under Rule 18 of Central Excise Rules, 2002 and also simultaneously under claim of duty drawback under Customs, Central Excise Duties [and Service Tax] Drawback Rules, 1995; that the respondents have declared on the ARE-1 that cenvat credit was not availed on inputs used in the manufacture of the goods which have been exported to enable the exporter to avail full rate of duty drawback and accordingly they have effectively taken out the input as well as the excisable goods manufactured out of the said inputs out of the Cenvat Scheme; that thus the provisions of Rule 3(4)....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cenvat credit account was utilised for payment of Central Excise duty on finished products cleared for exports under claim of rebate and since the same has not been fulfilled the sanction of drawback is erroneous; that the applicant have not acted in bona fide manner as they have availed the benefits of drawback as well as rebate of duty since the applicant was entitled to choice of either drawback or availment of cenvat credit or rebate and not a combination of both. 2.2 Thus aggrieved by the impugned order, the jurisdictional Commissioner after proper process of review preferred an appeal before Commissioner (Appeals) who accepted the same thereby setting aside the impugned order-in- original. 3. Being aggrieved by the impugn....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is claimed, shall not be under the cenvat credit scheme for availing the cenvat credit. Whereas the Cenvat Credit Rules does not specifies this. The Cenvat Credit Rules does not says that the cenvat credit utilized in paying duty on the goods even though the Cenvat credit is not availed on the inputs consumed to manufacture those goods. This is the crux of the issue and the contradiction raised by the department. Thus drawback is available to the assess. The applicant rely upon the following judgments : ● 2009 (237) E.L.T. 495 (Tri.-Ahd) : PSL Corrosion Control Services Ltd. v. C.C.E., Daman ● 2008 (232) E.L.T. 217 (Tri.-LB) in the CESTAT, Principal Bench,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gs of the Commissioner is not sustainable. 3.4 The Commissioner's ground is that the applicant cannot avail both the benefits availing the cenvat credit and availing the drawback. But in the present case, the cenvat credit is not availed. The Commissioner has overlooked the payment of cenvat credit earned from other inputs and not the same used in manufacturing of this. If the argument is the drawback is nothing but cenvat credit, that what about the cenvat credit not availed on the said inputs? If we have not availed the cenvat of the said input we shall be allowed to avail the drawback. It is not double benefit. 4. Personal hearing in the case was scheduled on 7-12-2010, 2-2-2011 & 10-5-2011. Nobody attended the hearing on beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in manufacture of export goods is not in dispute. But applicant has violated the condition 12(ii) of Notification No. 68/07-Cus. (N.T.), dated 16-7-2007 as he has availed cenvat facility for goods under export in as much as duty on exported goods was paid from the cenvat credit account. Despite this violation, applicant has availed drawback claim for both excise and customs portion. In such a situation extending the benefit of rebate under Rule 18 of Central Excise Rules, 2002 will definitely amount to double benefit. The C.B.E. & C. Circular No. 83/2000-Cus., dated 16-10-2000 (F. No. 609/116/2000-DBK) has clarified that there is no double benefit available to the manufacturer when only customs portion of All Industry Rates of Drawback is c....