TaxTMI 
TaxTMI 
2013 (3) TMI 141
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....mu unit and filed 16 rebate claims amounting to Rs. 6585076/-. The applicant was issued deficiency-memo-cum-SCN calling them for reply and hearing vide F.No. V(15)Rebate/ Fortune/RGD/05/17161/2352, dated 3-3-2006. The applicant did not followed the different personal hearing dates fixed for the year 2006 and finally personal hearing was attended on 8-9-2006, but without written submission or conclusions. Further, three more personal hearings were fixed but nobody responded to them and the Assistant Commissioner (Rebate) Central Excise, Raigarh, after due process of law, rejected the above rebate claims vide order-in-original dated 14-3-2007, questioning therein, the duty paid character of the impugned export goods and the exempted nature in terms of Section 5A of the Central Excise Act, 1944 of the same. The appeal against this order was dismissed as time-barred by the jurisdictional Commissioner (Appeals) on 31-3-2008. Further, the revision application of the applicant claimant was rejected vide GOI Final Order No. 497/2009-CX., dated 14-12-2009. Thereafter the applicant preferred Writ Petition No. 253/2010 before Hon'ble High Court of Bombay which was remitted back to the departm....
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....propriate central excise duty. The claimant availed the excess inadmissible Cenvat credit, which was used for payment of excise duty of the impugned goods. 3. Being aggrieved by said order-in-original dated 22-9-2010, they filed appeal before Commissioner (Appeals-II), Mumbai who accepted the same thereby setting aside the impugned order-in-original. 4. On being aggrieved by the above said order-in-appeal passed by the Commissioner (Appeals-II), Mumbai, the Commissioner of Central Excise, Raigad preferred this revision application under Section 35EE(1A) of the Central Excise Act, 1944 on the following main grounds : 4.1 Commissioner (Appeals) while deciding the issue observed that the issue involved in the matter was that as to "whether the availment of excess/inadmissible credit by the supplier M/s. Gitanjali Ind. under Ntfn. No. 56/2002-C.E., dated 14-11-2002 rendered the rebate claims inadmissible." After giving the details of rebate claims filed by the applicants, relevant dates of removal and stipulated dates of reversal of credit; Commissioner (Appeals) further observed that the rebate claims have to be decided with reference to date when they were filed. Th....
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....se there is short payment. Benefit can be denied only if there is short payment of reason of fraud, collusion or any wilful mis-statement or suppression of facts.' In this particular case, the mala fide intention of M/s. Gitanjali Industries, Jammu has been proved as they have knowingly cleared the goods on payment of duty against inadmissible credit, with intent to evade duty payment. On one hand the Commissioner (Appeals) accepted that during the material time, the credit was not admissible and yet, on the other hand allowed the appeal. This is contrary and against the principles laid down by the Apex Court in the said case law. 4.5 The applicant relied upon the judgment in cases of : C.C.E., Ghaziabad v. Ashoka Metal Decor (P) Ltd. - 2010 (256) E.L.T. 524 (All.) = 2011 (21) S.T.R. 469 (All.). Standard Surfactants Ltd. v. C.C.E., Kanpur - 1998 (103) E.L.T. 675 (Tri.) 4.6 From the facts above, it has been settled that at a given time if the Cenvat credit was not admissible for whatsoever reason, then its consequences would be that the payment made for clearances of goods utilizing out of inadmissible credit is considered as "clearance without payment of duty ". Ther....
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....ter filing the rebate claims by the respondent as the respondent was a bona fide purchaser of the goods on which duty was paid or payable at the time of removal of such goods from the factory of the original manufacturer because it is a settled position of law that in those cases where the department has initiated any proceedings against the original manufacturer for denying self credit/excess credit/recovery the appropriate authority cannot deny the rebate to the bona fide claimant. 5.3 Gitanjali Industries, Jammu did not avail the excess inadmissible Cenvat credit to discharge the Central Excise duty liability the impugned goods supplied to the respondent as the exact and correct position of law with regards to the duty payment made by Gitanjali Industries, Jammu and removal of duty paid goods made by the respondent for the purpose of exports under the cover of ARE-1 Form and rebate claim had been filed by the respondent before the expiry of the period available for the reversal the disputed Cenvat credit. The scheme, terms and conditions as laid down under the aforesaid notification and C.B.E.& C. Circular No. 766/82/2003-CX., dated 5-12-2003 did not require the original a....
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....mstances which were involved and prevailing in the case of Standard Surfactants Ltd. v. C.C.E., Kanpur reported in 1998 (103) E.L.T. 675 (Tribunal) the case dealt with by CESTAT is clearly and completely distinguishable on the facts as well as on the peculiar circumstances as are evident from the deposits contained the case details. 5.8 There is no provision under Section 35EE of the Central Excise Act, 1944 for the grant of stay by the Revisionary Authority against the stay application dated 25-7-2011 filed by the Central Excise Commissionerate, Raigad and therefore in view of these facts the order dated 11-10-2011 passed by the Bombay High Court directing the revisionary authority to consider the stay application of the Central Excise Commissionerate, Raigad to that extent will not be enforceable in absence of any statutory and legal authority of law specified under the Central Excise Act, 1944. 6. Personal hearing in the case was scheduled on 29-12-2011. Shri Mohan Gupta, an authorized representative appeared for hearing on behalf of the respondent party who reiterated the submissions made in their counter reply dated 5-12-2011 & 7-12-2011. Nobody appeared on behalf ....
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....e in the Hon'ble Supreme Court and citing the case law of Omkar Overseas Ltd. - 2003 (156) E.L.T. 167 (S.C.), Commissioner (Appeals) set aside the impugned order-in-original and allowed the appeal of M/s. Fortune Intermediate (I) Pvt. Ltd., Surat with consequential relief. 9. Government notes that department has mainly contended that the Notification No. 56/2002-C.E., dated 14-11-2002 at clause (g) states that the amount of credit availed irregularly or availed in excess of the amount determined correctly refundable under clause (c) and not reversed by the manufacturer within the period specified therein, shall be recoverable as if it is a recovery of excise duty erroneously refunded. If such irregular or excess credit is utilized for payment of excise duty on clearances of excisable goods, the goods shall be considered to have been cleared without payment of duty to the extent of utilization of such irregular or excess credit. It is an admitted fact that M/s. Gitanjali Ind., Jammu had not reversed the excess credit within stipulated date. Therefore, the clearance made against this credit is without payment of duty as per the provisions of clause (g) of Notification No. 56/20....
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....cation No. 56/2002, dated 14-11-2002 was there but the regularization of such short payments through PLA during the given time periods as made were accepted by the then lower authority after one to one corelation in that very case. As against this cited case, the ingredients of one to one co-relation and confirmation/upholding of impugned demand amounts of crores of rupees upto the level of CESTAT and the same being still under challenge in Apex Court totally separates this case matter from that case of M/s. Shree Ranganatha Exports. 11. Government therefore thinks it proper to not only remain confined to above singular provision of clause 2(g) of availed notification but also give a due perusal of all the provisions of Cenvat Credit Rules, 2002 and finally notes that there indeed is a specific difference in stipulations to the extent that in entire statute of Cenvat Credit Rules, 2004, there is no such categorical declaration/provision stipulating that "the goods shall be considered to have been cleared without payment of duty to the extent of utilization of such irregular or excess credit". Rather there are stipulation by way of proviso (iv) to Explanation-2 below Rul....
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....estigation report of the case is not available before this authority. Respondent has relied upon Gujarat High Court order dated 31-3-2011 in the case of C.C.E., Surat v. Roman Overseas reported as 2011 (270) E.L.T. 321 (Guj.). Government notes that in the said cases manufacturer had procured grey fabrics on duty paying documents (Central Excise invoices) from suppliers who were found non-existent. The manufacturer had availed irregular Cenvat credit on such invoices and paid duty from such credit on clearance of excisable goods to merchant-exporter. Hon'ble High Court has held the rebate claim admissible to merchant-exporter since merchant-exporter had received goods on valid duty paying documents, paid duty to manufacturer and there was no charge that exporter was part to fraud. In these cases duty was paid from irregularly availed Cenvat credit by manufacturer in terms of Cenvat Credit Rules where there is no such provision like clause 'g' of para 2A of Notfn. No. 56/2002-C.E., dated 14-11-2002. In those cases the issue of payment of duty under Notfn. No. 56/2002-C.E., dated 14-11-2002 was not involved and therefore the said case law cannot be made applicable to present case. 14....