TaxTMI 
TaxTMI 
2012 (7) TMI 848
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....esaid impugned order. Later on the reviewing authority found that, as the goods were exported under DEPB scheme, the rebate was not admissible, hence passed the necessary orders for filing of the instant appeal, before Commissioner (Appeals). Commissioner (Appeals) uphold impugned Order-in-Original and decided the case in favour of respondent. 3. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 The merchant exporter has exported the goods under DEPB scheme. Since the exporter has claimed DEPB benefit under the DEPB scheme, no right vests in the exporter/manufacturer to claim the rebate of duty paid on inputs used in the manufacture of export goods and issue disclaimer in favour of manufacturer. The rebate claims filed by the manufacturer and paid to him as rebate have thus resulted in double benefit for the same export. 3.2 Under the DEPB scheme the exporters are issued DEPB scrip which allows them the specific amount to be utilized for payment of customs duty. The amount for which DEPB scrip is ....
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..... As such, it is not clear as to how in the grounds of appeal it has been mentioned that as per the disclaimer certificate of the merchant exporter, no separate claim for rebate of duty was to be made to the Central excise authorities under Rule 18 of the Central Excise Rules, 2001. No evidentiary support in respect of the said disclaimer has either been adduced before the Commissioner (Appeals) or in the present proceedings. 4.3 The rebate under Notification No. 21/2004-C.E. (N.T.) cannot be claimed simultaneously with the drawback, indicates that the law makers were conscious that there are overlapping incentive schemes in relation to export of goods. In this backdrop the exclusion of any declaration with regard to DEPB for availment of rebate singularly indicates that the incentive in terms of DEPB in no way overlaps with the rebate of excise duty under Notification No. 21/2004-C.E. (N.T.). As such, the availment of rebate and DEPB do not lead to any dual benefits. 4.4 The reference to Public Notice No. 102 (RE-2008)/2004-2009, dated 5-11-2008 in the appeal filed by the department is misplaced because the public notice is in respect of amendments/additions/correc....
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....i Anil Kumar Aggarwal, Superintendent on behalf of the respondent who reiterated the grounds of Revision Application. Shri S.K. Pahwa, advocate appeared for hearing on behalf of respondent, who reiterated submission made in their written reply dated 30-11-2010. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. Government notes that the applicant exported their goods under DEPB scheme through merchant exporter, against CT-1, without payment of duty on final product. Subsequently, they filed claim of rebate of duty paid on inputs used in such duty free final exported goods. The rebate claim was initially sanctioned by Originally Authority vide impugned Order-in-Original. Later on, being aggrieved by the impugned Order-in-Original, applicant department had filed appeal before Commissioner (Appeals) on the ground that as the goods were exported under DEPB scheme, the rebate was not admissible. Commissioner (Appeals) decided the case in favour of respondent. Now, applicant department has filed this revision application on grounds mention in para (4) above. 8. Government notes that....
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....provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. RULE 19. Export without payment of duty. - (1) Any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner. (3) The export under sub-rule (1) or sub-rule (2) shall be subject to such conditions, safeguards and procedure as may be specified by notification by the Board." 9.1 The plain reading of above said rules, makes it clear that for claiming rebate of duty paid on excisable goods or duty paid on materials used in the manufacture or processing of such goods, the provision of Rule 18 Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.) or 21/2004-C.E. (N.T.) both dated 6-9-2004 are to be followed. At the same time, if the exporter does not want to ....