TaxTMI 
TaxTMI 
2013 (7) TMI 333
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....r of Customs, Central Excise and Service Tax, Hyderabad. 3. The impugned Orders-in-Original were reviewed by the Commissioner of Central Excise, Hyderabad-III Commissioner and appeals were filed before Commissioner (Appeals) on the following grounds:- 3.1 The applicants had cleared the inputs as such under claim for rebate to SEZ, and assessee had filed the rebate claim under Section 11B of the Central Excise Act, 1944 read with Rule 18 of the Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended. The said claim is, contrary to the statutory position. 3.2 The export of goods under claim for rebate is governed by Rule 18 of the Central Excise Rules, 2002; that in terms of the conditions and limitations prescribed in Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 18 of Central Excise Rules, 2001 for grant of rebate of duty on export goods, excisable goods should have been exported after payment of duty directly from the factory of manufacture; that the procedure for sealing of goods and examination at place of dispatch also envisages export of goods from the factory of manufacture; that in the case of....
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....provisions of sub-rule (5) and Rule 3 of the Rules stipulates that : "The factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in rule 9". In this regard, the applicant would like to draw the kind attention of this authority to the provisions of Rule 4 of the Central Excise Rules, 2002 in terms of which every person who produces or manufacturers any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in Rule 8 or under any other law, and no excisable goods, on which duty is payable, shall be removed without payment of duty from any place, where they are produced or manufactured, or from a warehouse, unless otherwise provided. Rule 8 of the Central Excise Rules, 2002 provides for 'Manner of Payment' of duty on the goods removed from the factory or the warehouse registered under the provisions of Central Excise Law. In this regard, the applicant would like to....
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....Board has clarified as under : "2. A view has been put forth that rebate under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 is admissible only when the goods are exported out of India had not when supplies are made to SEZ. 3. The matter has been examined. The Circular No. 29/2006-Cus., dated 27-12-2006 [2007 (207) E.L.T. T35] was issued that rebate under Rule 18 is admissible when the supplies are made from DTA to SEZ. The Circular also lays down the procedure and the documentation for effecting supply of goods from DTA to SEZ, by modifying the procedure for normal export. Clearance of duty free material for authorized operation in the SEZ is admissible under section 26 of the SEZ Act, 2005 and procedure under Rule 18 or Rule 19 of the Central Excise Act, as envisaged under Rule 30 of the SEZ Rules, 2006. 4. Therefore, it is viewed that the settled position that rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made from DTA to SEZ does not warrant any change even if Rule 18 does not mention such supplies in clear terms. The field formations are required to follow the Circu....
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....t Credit Rules, 2004 is to be treated on payment of duty in terms of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 9. The issue has now been settled by Hon'ble High Court of Bombay in its order, dated 23-3-2011 in the case of CCE, Raigarh v. Micro Ink Ltd. in W.P. No. 2195/2010, reported as 2011 (270) E.L.T. 360 (Bom.). In the said writ petition Commissioner of Central Excise, Raigarh had challenged the GOI Order No. 873/10-CX., dated 26-7-2010 passed in the case of M/s. Micro Inks with respect to Order-in-Appeal No. SKS/244/RGD/2008, dated 30-4-2008 passed by Commissioner of Central Excise (Appeals) Mumbai Zone-II. Government had held in the said order, dated 26-5-2010 that amount reversed under Rule 3(4)/3(5) of Cenvat Credit Rules, 2004 is to be treated as payment of duty for the purpose of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. This view of the Government is upheld by Hon'ble High Court of Bombay in the above said judgment. The observations of High Court in paras 16 to 19 of said order are reproduced below :- "16. Since rule 3(4) of the 2002 Rules is pari materia with Rule 57(1)(ii) of the Centra....