TaxTMI 
TaxTMI 
2014 (12) TMI 29
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....s 12 to 18, Kaveri, Tungareshwar Industrial Complex, Village Sativali, Vasai, Distt. Thane had filed rebate claims amounting to Rs. 15,30,050/-. Assistant Commissioner (Rebate) Central Excise, Raigad, sanctioned the said rebate vide order-in-original No. 1203/10-11/AC (Rebate)/Raigad dated 27-10-2010. 2.1 The department filed appeal against the order-in-original before Commissioner (Appeals) on the grounds that as per the Notification No. 4/2009-C.E., dated 24-1-2009, the effective rate of Central Excise duty was reduced from 10% to 8%. It has been observed that the manufacturer had cleared the exported goods vide ARE-1 No. 86, dated 24-2-2009 by paying the Central Excise duty @ 10% instead of 8% and rebate had been claimed and sanc....
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.... 10%". The Commissioner (Appeals) has not appreciated the fact that the Board's Circular No. 510/06/2000-CX, dated 3-2-2000 clarifies that rebate has to be allowed equivalent to the correct duty. Thus what is important in the case is correct amount of duty as applicable at the prevailing time. The duty paid by the assessee bring not the correct duty as per the rate prevailing at the time, the amount paid in excess of 10% adv. cannot be considered as duty for grant of rebate. 4.2 Commissioner (Appeals) order is per incuriam as it does not consider the provisions of Section 5A(1A) of the Central Excise Act which stipulates that in case of unconditional exemption, no excise duty is payable. 4.3 The ignorance of law is not an ex....
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....ssee was justified in filing the refund claim as the self-assessment cannot be considered as an assessment made by an officer under Section 73 against which an appeal or challenge lies". 4.6 Similarly, in the case of Premier Agencies v. CC, Nagpur reported in 2010 (18) S.T.R. 668 (Tri.-Mumbai), relying on the judgment in the case of Nagpur Transwell Power Pvt. Ltd. v. Commissioner of Central Excise, Nagpur reported in 2009 (243) E.L.T. 459 (Tri.-Mum), wherein while disposing the stay application, the Hon'ble Tribunal has clearly held that proposition that "assessment" includes "self-assessment" is not correct for purpose of appeal under Section 35F of the Central Excise Act, 1944; that the appeal under Section 35 ibid is preferable ....
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....order shall be passed." 4.9 It is therefore clear that the rebate sanctioning authority can himself ascertain correctness of the duty payment and adjudicate the matter which Dy. Commissioner (Rebate) failed to do. 4.10 In view of the above, applicant department requested to allow their revision application. 5. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. Respondent vide letter dated 25-2-2012 has contested the departmental revision application and pleaded to uphold the impugned order-in-appeal. 6. Personal hearing was scheduled in this case on 25-9-2013 and 12-3-2014. Nobody attended hearing on behalf of applicant. However, applic....
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....ioning authority can not change it. In this regard, it is observed that rebate sanctioning authority has to satisfy himself that rebate claim is in order before sanctioning the same. The said provision is contained in para 3(b)(ii) of Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004 which is extracted below :- "3(b) Presentation of claim for rebate to Central Excise :- (i) ................................ (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with ....
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....laim of Rs. 60,061/- erroneously sanctioned is recoverable along with applicable interest. 9.3 It is observed that amount paid in excess of duty liability on one's own volition cannot be treated as duty and it has to be treated a voluntary deposit with the Government which is required to be returned to the assessees/respondents in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon'ble High Court of Punjab & Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & H) has decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid le....