TaxTMI 
TaxTMI 
2010 (2) TMI 958
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....15,26,592/- 2007-08 608- 641/CE/CHD/08 12-12-08 2. 195/158- 183/09-RA M/s. Nahar Industrial Enterprises Ltd. Lalru CCE Chandigarh 14,78,278/- 2007-08 644- 673/CE/CHD/08 dated 16-12-08 3. 195/183- 201/09-RA -do- -do- 2007-08 -do- 4. 195/208-09/09-RA -do- -do- 17,99,800/- 2004-05 15-16/CE /CHD/ 2009 28-1-2009 5. 195/586/ RA-CX., Dt. 26-6-09 M/s. Nahar Spinning Mills Ltd. M&D Unit. CCE Chandigarh 2,23,376/- Feb.-Oct., 05 06/CE/ CHD/09 21-1-09 6. 195/211/09/RA-Cx., Dt. 20-5-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit CCE Chandigarh 25,41,229/- Jan. 07 - Jan. 08 165-167/CE/ CHD/2009 19-3-09 7. 195/623-625 /09/RA-Cx Dt. 28-7-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit CCE Chandigarh 2,58,254/- 5,76,693/- Oct., 04 to Jan., 05 165-167/CE/ CHD/2009 19-3-09 8. 195/596-622 /09/RA-Cx Dt. 28-7-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit &. M/s. Nahar Industrial Enterprises Ltd. CCE Chandigarh 28,59,013/- 45,28,619/- Oct., 07 to May, 08 134-161/CE/ CHD/2009 ....
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....ction on availing both simultaneously. However, the respondent voluntarily has not taken Cenvat credit of duty paid on inputs and the finished goods manufactured from these inputs should be cleared at Nil rate of duty in terms of Notification No. 30/2004-C.E. 3.3 That the respondent opted for full exemption from payment of Central Excise duty under Notification No. 30/2004-C.E. and had not availed Cenvat credit on inputs used for manufacturing the final products and the same satisfies the condition of Notification No. 30/2004-C.E. The clearance of finished goods for export should be at NIL rate of duty. 3.4 That proviso to Notification No. 30/2004-C.E., dated 9-7-2004 provided that "nothing contained in this Notification shall apply to the goods in respect of which credit of duty on inputs has been taken under the provisions of Cenvat Credit Rules, 2002." In view of this, intention of the legislature is very clear that even If the respondent who had been working under the provisions of Notification No. 30/2004-C.E., and had not been availing Cenvat on inputs, avails Cenvat credit of duty paid on capital goods, they were required to work under the provisions of Notif....
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.... that claiming of any exemption notification in respect of any specific clearances is a matter of choice with the assessee, which cannot be forced. Therefore the actual duty paid on the goods exported out of India is liable to be refunded in cash. 6.3 The Central Board of Excise and Customs (hereinafter referred to as C.B.E.C.), further strengthens the aforesaid stand taken by the applicant in respect of rebate of duty on exports, C.B.E.C. issued a Circular No. 687/3/2003-CX., dated 30-1-2003, clarifying that the duty paid through actual or deemed credit account on the goods exported, must be refunded in cash. It is a well-settled position of law that the circular issued by the board is binding on the Revenue Authorities. Therefore, the order-in-appeal, denying the rebate claim to the extent of actual amount of duty paid by the applicant on exports, is contrary to clarification iIssued by the Board and hence liable to be set aside. 6.4 The applicant relies upon the judgment in case of Everest Convertors v. CCE, Calcutta reported as 1995 (80) E.L.T. 91 (Tribunal) wherein, the Hon'ble Calcutta Tribunal has categorically held that Notification having character of exemp....
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....ntitled for rebate of Duty actually paid on exports and it is not relevant whether any exemption notification is availed or not. The Tribunal in another case i.e. CCE v. Noel Pharmaceuticals, 1999 (113) E.L.T. 66 also appreciated that exporter is entitled for rebate of actual amount of duty paid on exports and credit of Duty cannot be restricted to effective or applicable rate of Duty given under a particular Notification. In the light of these decisions of the Tribunal, it is beyond doubt that the Applicant is entitled for refund/rebate of Duty to the extent of actual amount of Duty paid on exports. Therefore, the contention of the department is illegal and unsustainable in law. 6.7 Further, on the facts similar to the matter in hand, the Hon'ble CESTAT in case of Gayatri Laboratories Pvt. Ltd. v. CCE, Mumbai - 2006 (194) E.L.T. 73 (Tri. - Mumbai) held that even if duty paid at the rate specified in the Tariff Act, the rebate claim cannot be disallowed. 6.8 That the applicant further submits that for rejecting the rebate claim, the Respondent has baselessly relied upon the declaration filed by the applicant on 8-9-2004. In the said declaration, the applicant had de....
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....redit leads to availment of Notification No. 30/2004-C.E., dated is without any basis. Here it is submitted that when any exemption notification is issued, the assessee is at liberty to opt for or not opt for that notification. An assessee cannot be forced to compulsory avail the notification, if the notification is not suited to him therefore merely satisfying the condition of Notification No. 30/2004-C.E. does not mean that respondent is bound to avail the said Notification. It has further been alleged by the Revenue that the applicant has utilized the Cenvat Credit for payment of duty to convert unutilized credit into cash as the applicant has not availed credit on inputs utilized in the manufacture of export goods. In this regard it is submitted that the Cenvat Credit Rules, 2004 contains provisions for taking and utilization of Cenvat credit paid on inputs and capital goods used in the manufacture of final goods. The statute clearly provides for utilization of Cenvat Credit for payment of duty for any final product. There is no restriction casted on to the manufacturer to utilise the credit earned on inputs for payment of duty on only those final products which are manufacture....
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....the ld. Joint Secretary has actually allowed the rebate in cash to the extent of 4%. The above said order of ld. Joint Secretary granting cash rebate to the extent of 4%, has not been challenged by the Revenue and has attained finality. Moreover, cash rebate to the extent of 4% has been always granted by the Revenue at all levels starting from adjudicating stage. Therefore, at this stage the Revenue is not permitted to deny the total cash rebate. 6.17 The action of the Revenue is barred by the Doctrine of Estoppel. Once the issue that the cash rebate of 4% is admissible to the Applicant is settled between the parties and has not been challenged at any stage, the Revenue is stopped from taking a U-turn for denying the cash rebate. In the case of Associated Polymer Industries v. CCE, Kolkata - 2008 (227) E.L.T. 449 (Tri. - Kolkata) = 2009 (13) S.T.R. 193 (Tri.-Kolkata) Hon'ble Tribunal has held that department having not appealed against the earlier order, these orders have attained finality and similar demands raised on the same set of facts and circumstances, cannot be sustained in view of earlier orders of the Tribunal. This view has been approved by Hon'ble Apex Court in ....
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....on Notification No. 29/2004-C.E., dated 9-7-2004 for granting partial exemption by which the goods manufactured are chargeable to duty 4% or 8%, and Notification No. 30/2004-C.E., dated 9-7-2004 granting full exemption from payment of central excise duty, subject to the condition-that no cenvat credit is taken on the inputs consumed in the manufacture of final product. The applicants were availing both the aforesaid Notifications simultaneously in terms of clarification issued by the C.B.E.C. vide its Circular No. 795/28/2004 dated 28-7-2004. The basic condition for availing exemption under Notification No. 30/2004-C.E., dated 9-7-2004 was that the applicant is not allowed to take Cenvat credit on the inputs utilized for manufacturing/processing of the finished goods. Whereas for availing benefit under Notification No. 29/2004-C.E., dated 9-7-2004, there was no such condition of availing or not availing of the Cenvat Credit on the inputs utilized for manufacturing/processing of the finished goods. 10. During the relevant period, the applicants were clearing the goods for export after paying the concessional rate of excise duty 4% or 8% in terms of Notification No. 29/2004-C....
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....ble for exemption under this notification (30/2004-C.E., dated 9-7-2004). However, Board further allowed the availment of proportionate credit on the inputs utilized in the manufacture of goods cleared on payment of duty (under Notification No. 29/2004-C.E., dated 9-7-2004) which should be taken at the end of the month only. Government observes that the purpose of this clarification was only to check that the manufacturer should not claim cenvat credit on the inputs and avail exemption under Notification No. 30/2004-C.E., dated 9-7-2004 simultaneously. For availing Notification No. 29/2004-C.E., dated 9-7-2004, there is no such condition of availing or not availing of the cenvat credit on the inputs utilized in manufacturing of finished/exported goods. 12. Government further deserves that M/s. Nahar Industries Enterprises Ltd. has filed a declaration vide their letter dated 8-9-2004 to work under Notification No. 30/2004-C.E., dated 9-7-2004. In this respect, the applicant has submitted that they have given this declaration only in respect of stock lying at that time. Moreover, there was no legal requirement for filing any declaration under Notification No. 29/2004-C.E. and....