TaxTMI 
TaxTMI 
2013 (10) TMI 1309
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.... holding Central Excise Registration No. AAACM7313HXM001. The claimant's aforesaid manufacturing unit was converted into a 100% Export oriented undertaking with effect from 15-10-2010 as per the LOP No. PER : 05 (2009)/SEEPZ-SEZ/EOU/13/9-10-8325 to 8328, dated 6-8-2009, as amended issued by the Development Commissioner, SEEPZ Special Economic Zone, Andheri (East), Mumbai-400096 and the Customs Bonded Ware-house Registration No. V. Gen (30) 36/Monomer Chem (100% EOU)/Unit No. 3/T-33/K-IV/10/3728, dated 15-10-2010 granted by this office under Sections 58 and 65 of the Customs Act, 1962. The claimants have filed with this office following four rebate claims in Form C claiming rebate of duty paid on the goods manufactured and exported by them : Sr. No. Date of filing claim ARE-1 No. & Date Central Excise Invoice No. & Date Shipping Bill No. & Date Bill of Lading No. & Date Date of Shipment Amt. of Rebate claimed (Rs.) 1 10-1-2011 76/10-11, dated 15-10-2010 6957232, dated 18-10-2010 8957232, dated 18-10-2010 SAFM 752227598, dated 24-10-2010 24-10-2010 1,11,801/- 2 2-2-2011 78/10-11, dated 15-10-2010 8954349, dated 16-10-2010 8954349, dated 16-10-2....
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.... Cess claimed as paid by the claimants in the present ARE-1s and rebate claims in respect of the aforesaid clearances cannot be legally considered as Central Excise Duty/Education Cess/SHE Cess paid under the said enactments namely Central Excise Act, 1944 Finance (No. 2) Act, 1944 and Finance Bill, 2007 for the purpose of grant of rebate under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended. In view of the foregoing, it appeared that all the aforesaid four rebate claims are liable to be rejected. In this background, the adjudicating authority rejected the said rebate claims of Rs. 4,77,943/-. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The applicant would like to state that the main reason for rejecting the rebate claim is on the ground that when exemption is granted under Section 5A(1A) of Central Excise Act, 19....
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....was not payable as per law and hence it cannot be refunded. 5. Personal hearing was scheduled in this case on 25-9-2013 was attended by Shri Mahendra Madhav Gokhle, Excise Officer on behalf of the applicant who reiterated the grounds of Revision Application. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that applicant manufacturing unit was converted into 100% EOU unit w.e.f. 15-10-2010 as per OP No. per : 05 (2009) SEEPZ-SEZ/EOU/13/09-10/8325 to 8328, dated 6-8-2009 issued by Development Commissioner SEEPZ-SEZ, Mumbai and as per approval of Customs bonded warehouse vide Registration No. V. Gen (30) 36/Monomer Chem (100% EOU) unit No. I/T-II/K-IV/10/3728, dated 15-10-2010 granted by Customs under Sections 58 and 65 of Customs Act, 1962. Applicant cleared excisable goods on payment of duty same day on 15-10-2010 vide ARE-1 Nos. 76, 78, 79, 80/10-10 all dated 15-10-2010 and exported the same on 24-10-2010 and 21-10-2010. Four rebate claims of Rs. 4,77,943/- were filed under Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. ....
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....lutely the manufacturer of such excisable goods shall not pay the duty of excise on such goods." 8.4 The Notification No. 24/2003-C.E., dated 31-3-2003 was issued under Section 5A(i) of Central Excise Act, 1944. The goods manufactured by 100% EOU and cleared for export are exempted from whole of duty unconditionally. Therefore in view of provisions of sub-section (1A) of Section 5A, the applicant manufacturer has no option to pay duty. Government notes that there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear goods for exports as per the EOU scheme. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A(1) are applicable and no duty was required to be paid on such export goods. As such rebate claims were rightly held by Commissioner (Appeals) to be inadmissible in terms of Rule 18 of Central Excise Rules, 2002. Government finds support from the observations of Hon'ble Supreme Court in the case of M/s. ITC Ltd. v. CCE reported as 2004 (171) E.L.T. 433 (S.C.), and M/s. Paper Produ....