TaxTMI 
TaxTMI 
2015 (1) TMI 943
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.... of Central Excise Duty under Rule 18 of Central Excise Rules 1944, which was paid on their exported goods. In view of the legal position that Section 5A (1A) of Central Excise Act provides that where an exemption under sub section (1) in respect of any excisable goods from the whole of duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. Accordingly, when the Notification No.24/2003-CE dated 31.03.2003 provides absolute exemption of duty of the goods manufactured by 100% EOU, then 100% EOU shall not pay the duty at all and therefore the question of paying duty at the outset and thereafter claiming rebate under Rule 18 does not arise. In view of that the Deputy Commissioner of Central Excise I Division, Trichy, rejected both the claims respectively under order-in-original No.07/2010 and 09/2010 both dated 31.05.2010. The assessee filed appeal before Commissioner (Appeals), and Commissioner (Appeals) vide order-in-appeal No.186/2010 dated 18-10-2010 allowed both the claims. 2.1.2 Against the order-in-appeal No.186/2010 dated 18-10-2010 passed by the Commissioner (Appeals), Tiruchirapp....
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....for Rs. 1,89,291/- with the Assistant Commissioner, Central Excise I Division, Trichy in respect of the excisable goods "Automobile, tubeless with Nylon Tire Cord Warp" exported under ARE-1 NO.10/USR/10-11 dated 09.09.2010. Section 5A (1A) of the Act provides that where an exemption under sub section (1) in respect of any excisable goods from the whole of duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. Accordingly, when the Notification No.24/2003-CE dated 31.03.2003 provides absolute exemption of duty of the goods manufactured by 100% EOU, then 100% EOU shall not pay the duty at all and therefore the question of paying duty at the outset and thereafter claiming rebate under Rule 18 does not arise. Hence a show cause notice dated 6.9.2011 was issued to the assessee as to why the rebate claim for an amount of Rs. 1,89,291/- filed on 27.6.2011 should not be rejected for the above said reasons, under Section 11 B of the Central Excise Act,1944 read with Rule 18 of the Central Excise Rules,2002. After due process of law, the lower authority viz. Assistant Commissioner of Central Excise....
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....354/73/2011-TRU) clarified that Only credit of goods used in the factory but having absolutely no relationship with the manufacture of final product is not allowed: in the case of assesee they are-manufacturing Solid Tyres falling under Chapter 40 and the inputs are Carbon Block, Reclaimed Rubber, Rubber Chemicals and Zinc Oxide. Wheel Rims are not inputs for the manufacture of final product Solid Tyres, accordingly the Cenvat credit wrongly taken on MS Plates are disallowed as rebate amount by-the Original Adjudicating-Authority. 3.1.3 Therefore, it is prayed that the Revision Authority, Government of India, New Delhi may be pleased to pass order setting aside, the impugned Order-in-Appeal No. 104/2012 dated 24.05.2012 and to uphold the Order in Original No.05/2011 dated 01.03.2011 passed by the Deputy Commissioner of Central Excise, Central. Excise I ,Division, Tiruchirappalli with respect to disallowing of the rebate claim in respect of Cenvat Credit wrongly taken on MS Channels, Plates and SM Bars to the tune of Rs. 53,085/- or pass such further/other orders as the Revision Authority, Government of India may deem fit in the facts and circumstances of the case. It is also pra....
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....Appeals) has erred in bringing in a new ground which was not the subject matter of appeal. 3.2.4 Commissioner(Appeals) allowed the appeal relying on the decision of Hon'ble Tribunal in the case of GTN Exports Vs CCE, Coimbatore 2009(236)ELT 110(Tri-Chennai), which, is on claim of refund of unutilized credit by EOU, whereas in the instant case, the assessee claimed rebate of duty paid by them under rule 18 of CER, 2002, which they were not permitted to do, because of availability of absolute exemption notification, as aforesaid and therefore the ratio of decision in the cited case is not applicable to the present set of facts. 3.2.5 The assessee relied upon the Order-in-appeal No.66/2008 dated 18.12.2008 wherein, the same assessee filed a claim seeking rebate of duty paid on the exported goods. The unit was not an EOU at that time. The rebate claim was rejected by the lower authority as time barred since the shipping bill was submitted after expiry of one year from the relevant date as stipulated under Section 11B of Central Excise Act, 1944. Commissioner(Appeals) vide Order No.66/2008 dated 18.12.2008 observed that the assessee had filed their rebate claim in time and sub....
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....e refund of accumulated cenvat credit through Rule 18 of Central Excise Rules 2002 instead of Rule 5 of CENVA T Credit Rules 2004. Commissioner (Appeals) relying upon Hon'ble CESTA T Order in the case of M/s GTN Exports Ltd. Vs CCE Coimbatore 2009 (236) 110 (Tri-Chennai); CBEC Circular 799/32/2004/CX dated 23.9.04 and circular 828/5/2006-CX dated 20.4.06 held the rebate is admissible under Section 11B of Central Excise Act 1944. Now the applicant department has filed these Re vision Applications on the grounds stated at pars 4 above. 10. In order to understand the issue, it is necessary to go through the provision of Notification No. 24/03-CE dated 31.03.03 and section 5A(IA) of Central Excise Act, 1944 which are extracted below: 10.1 Notification No. 24/2003-CE dated 31-03-2003 states as follows- " In exercise of the power conferred by sub section (1) of section 5A of Central Excise Act, 1944, (1 of 1944), read with sub-section (3) of section 3of the Additional Duties of Excise (Goods of special Importance) Act, 1957 (58 of 195....
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.... case of M/s ITC Ltd. Vs CCE reported as 2004 (171) EL T 433 (SC), and M/s Paper Products Vs CCE reported as 1999 (112) EL T 765 (SC) that the simple and plain meaning of the wordings of statute are to be strictly adhered to. CBEC has also clarified vide letter F.No, 2009/26/09-Cx dated 23.04.2010 (Para 2) as under: "The matter has been examined, Notification No. 24/2003-CE dated 13.03.2003 provides absolute exemption to the goods manufactured by EOU. Therefore, in terms of Section 5A(1A) of the Central Excise Act, 1944, EOUs do not have an option to pay duty and thereafter claim rebate of duty paid. " 10.4 As regards, applicants contention that duties/taxes are not to be exported, Government notes that these are various scheme in operation which neutralize the effect of duty incident on the exported goods. Each scheme is governed by the conditions/limitations and procedures laid down in the notification. In this case the provisions of section 5A(1A) of Central Excise Act 1944 put embargo on payment of duty since goods were exempted from payment of w....