TaxTMI 
TaxTMI 
2013 (5) TMI 789
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....ted and were procured under various bills of entries, such bills of entry are not covered under condition No. 3 of the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 and therefore, the said condition was not fulfilled; that the duty was not paid at the time of import in cash and the same was debited in DEPB scrip; that the rebate has been allowed in respect of additional duty leviable under sub-section (5) of Section 3 of Customs Tariff Act, which is not specified in the above notification for the purpose of rebate and therefore, the sanction of rebate claims was not legal and proper. Commissioner (Appeals) rejected the appeals filed by the applicant department. 3. Being aggrieved by the impugned Orders-in-Appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 It is seen that the input materials on which rebate has been sanctioned is obtained by M/s. Vinati Organics Ltd. by way of import. Further, it is also seen that at the time of import, duty has not been paid in cash but the same was debited in DEPB scrip. The rebate has been allowed in respect of Addit....
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....) duty paid on export goods, or (ii) duty paid on inputs used in the manufacture or processing of export goods. Respondents have met with these essential conditions of Rule 18 above. 4.2 Basic condition of Notification No. 21/2004 C.E. (N.T.) is that the inputs should have been used in the manufacture or process of exported goods to be eligible for claiming rebate/refund. The fact that the inputs for which rebate is claimed have been used in the manufacture/process of exported goods is not in dispute. There is no dispute regarding quantification of the amount of rebate/refund claimed. Under these circumstances, when goods exported is not in dispute, use of inputs is not in dispute and amount of claim is not in dispute, there is no case for filing review petition and the same needs to be set aside. 4.3 When fact of export is not disputed, the valuable right to claim rebate cannot be destroyed or denied due to technical or procedural breach if any. The applicant has cited some case laws in favour of their contention. 4.4 Only point taken up in the revision application is that the rebate of amount of Cenvat credit paid through DEPB is not allowable as the....
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....ure of exported goods, under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004. The rebate claims were initially sanctioned by the original authority. Department filed appeals before Commissioner (Appeals) against the impugned Orders-in-Original on the grounds that the inputs used were imported and procured under various bills of entries. Such bills of entry are not covered under condition No. 3 of the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 and therefore, the said condition was not fulfilled; that the duty was not paid at the time of import in cash and the same was debited in DEPB scrip; that the rebate has been allowed in respect of additional duty leviable under sub-section (5) of Section 3 of Customs Tariff Act, which is not specified in the above notification for the purpose of rebate and therefore, the sanction of rebate claims was not legal and proper. Commissioner (Appeals) rejected the appeals filed by the applicant department. 8. Government observes that the department is mainly contesting that payment of duty by way of debit in DEPB Scrip will not be treated as payment of duty and hence, such payment are not eligible for rebate benefit. The re....
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....2 of the Board's circular No. 41/2005-Cus., dated 28-10-2005 reads as under : "2. The matter has been examined by the Board. Hitherto, the additional customs duty paid in cash only was adjusted as CENVAT credit or duty drawback while the same paid through debit under DEPB was not allowed as duty drawback. In the Foreign Trade Policy 2004-2009, which came into force w.e.f. 1-9-2004, it has been provided under paragraph 4.3.5 that the additional customs duty/excise duty paid in cash or through debit under DEPB shall be adjusted as Cenvat credit or Duty Drawback as per the rules framed by the Department of Revenue. Taking note of this change, it has been decided that the additional customs duty paid through debit under DEPB shall also be allowed as brand rate of duty drawback." The above said provision provides that additional customs duty paid through debit under DEPB scrip shall be allowed as brand rate of duty drawback. 8.3 Para 4.3.5 of the Foreign Trade Policy 2004-09 reads as under :- "Additional customs duty/excise duty and special additional duty paid in cash or through debit under DEPB may also be adjusted as Cenvat Credit or duty Drawback as p....
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....ion required the materials to be brought under an invoice issued under Rule 11 of the Central Excise Rules, 2002 and the said condition has not been fulfilled as the imported material had been brought under Bills of Entry. The notification grants the rebate "subject to the condition and the procedure specified hereinafter". What is specified thereafter at Sr. No. 3 only lays down the procedure for procurement of material from registered factories. This cannot be applicable to material procured from other sources. The manufacturers wanting to use imported material cannot possibly procure such material from registered factories. The law does not require anybody to do the impossible. Since the use of imported materials used for the manufacture or processing of export goods is permitted and the rebate of the additional duty leviable under section 3 of the Customs Tariff Act, 1975 is also allowed, the only possible conclusion is that the notification does not prescribe any particular procedure or condition for procurement of imported material. Accordingly, the contention of the revenue has to be rejected. " Commissioner (Appeals) has given a logical reasoning, Government no....