TaxTMI 
TaxTMI 
2011 (8) TMI 1063
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....ed in export products being manufactured by them under Notification No. 43/2001-N.T., dated 26-6-2001. Further, on examination of shipping bills it was seen that the value considered for payment of Central Excise duty by the claimant is inclusive of freight charges. Under Section 4 of the Central Excise Act, cost incurred beyond the place of removal is not allowed, and hence, show cause notice was issued to the assessee for disallowing the rebate claim and if eligible, restricting the claim by excluding freight charges paid beyond the place of removal. 2.2 The Assistant Commissioner, Central Excise, Pune IX Division, vide order-in-original No. 446/CEX/REF/2008, dated 17-11-2008 rejected the rebate claim of ₹ 9,21,512/- under the provisions of Section 11B read with Rule 19 of Central Excise Rules, 2002 and Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 and imposed penalty of ₹ 5000/- under Rule 27 of Central Excise Rules, 2002. 2.3 Aggrieved by the above order, the assessee filed an appeal with Commissioner (Appeals) who, vide order-in-appeal No. PIII/45/09, dated 223-3-2009 allowed the assessee's appeal on the grounds that the assessee has used both d....
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....001-C.E. (N.T.), dated 26th June, 2001, as amended, has been issued under Rule 19 (export without payment of duty) of Central Excise Rules, 2002. Therefore, the goods manufactured using the materials received without payment of duty under Notification No. 43/2001-C.E. (N.T.), dated 26th June, 2001, as amended, issued under Rule 19(3) read with Rule 19(2) are required to be exported under Rule 19(1) by observing the conditions, safeguards and procedures specified under Rule 19(3) of Central Excise Rules, 2002." 3.4 Accordingly, the relevant provision of Notification 43/2001-C.E. (N.T.) as amended by Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004 is being reproduced - "Explanation-II. - For the removal of doubt, it is clarified that the goods manufactured or processed using the excisable goods so procured without payment of duty under this notification shall be exported in terms of sub-rule (1) of Rule 19 of the Central Excise Rules, 2002." Accordingly it is not disputed by the assessee that they have procured raw materials to be used in export products being manufactured by them under Notification 43/2001-C.E. (N.T.), dated 26-6-2001. As such irrespective of the conten....
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....per the condition. 4.3 But no such case exists in relation to disputed export consignment, when they have partly used procured material and partly duty paid material. There is nothing in the said notification, which bans the use of duty free material with duty paid material or vice versa, as ultimately in either case goods are to be exported as prescribed and stipulated in the said notification, which applied to export under bond as well as export under claim of rebate. 4.4 Without prejudice to above, we submits that the Delhi Tribunal in case of Murli Agro Products [2005 (183) E.L.T. 277] held that we are entitled to refund of duty even if duty paid inputs are used along with free inputs procured under Notification No. 43/2001. 4.5 We further submit that Notification No. 43/2001 came in substitution of Notification No. 47/1994, which also permitted duty free procurement of goods for manufacture of export goods with analogous conditions. On the point of admissibility of rebate claim in respect of the export goods manufactured from inputs procured duty free under Notification No. 47/94, the Revisionary Authority under Government of India, in case of Banswara Syntax....
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.... 2002 by observing conditions, safeguards and procedures specified under Rule 19(3); that the Notification No. 43/2001-C.E. (N.T.) was amended vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004 envisaging/clarifying that goods manufactured using raw material procured duty free under Notification No. 43/2001-C.E. (N.T.), shall be exported in terms of Rule 19(1) of Central Excise Rules, 2002. The respondent party is claiming that the export goods manufactured form duty paid raw materials as well as duty free raw materials procured under Notification No. 43/2001-C.E. (N.T.) are not required to be exported under Rule 19(1). The amendment of said Notification vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004 requires those export goods to be exported under Rule 19(1) which are manufactured only from the raw materials procured duty free under Notification No. 43/2001-C.E. (N.T.). 9. The relevant provisions of rules and Notifications are as under : 9.1 Rule 19 of Central Excise Rules, 2002 "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 wa....
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....y under rebate claim in terms of Rule 18 of Central Excise Rules, 2002. Above said position has also been clarified in C.B.E. & C. Circular No. 792/25/2004-CX., dated 2-6-2004. 10.1 Now therefore the matter is required to be decided on the basis of the above facts under the provisions of applicable statute as detailed in preceding paras, Government is of the opinion that in respect of exports made by the respondent party, the instant rebate claim under Rule 18 of the Central Excise Rules, 2002 can only be considered subject to conditions/limitations as set out in relevant/governing Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001 along with amendment vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004, and as per Explanation II of said notification such goods shall be exported in terms of sub-rule (1) of Rule 19 of the Central Excise Rules without payment of duty. In case such rebates are allowed, it will amount to an amalgamation of two different Rules contravening each other's condition which is not envisaged in the rules. Further it has also been clarified in C.B.E. & C. Circular No. 792/25/2004-CX, dated 2-6-2004 that goods manufactured using materials received....