TaxTMI 
TaxTMI 
2012 (12) TMI 972
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....cation No. 59/2008-C.E., dated 7-12-2008 during the period 14-2-2009 to 19-2-2009 and filed rebate claims of Rs. 6,58,285/- under Rule 18 of Central Excise Rules, 2002. The Notification No. 29/2004-C.E., dated 9-7-2004 was amended by Notification No. 58/2008-C.E., dated 7-12-2008 to reduce the duty on cotton made items to zero. During the relevant time duty of said goods was nil as per Notification No. 29/2004-C.E., dated 9-7-2004 as amended vide Notification No. 58/2008-C.E., dated 7-12-2008. As such, applicant paid duty on the exempted goods which was not permissible. Since it appeared that the appellants had filed the claim erroneously, a show cause notice was issued to reject the rebate claim. After due process of law, the lower authori....
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....ds in terms of Notification 59/2008-C.E., dated 7-12-2008. In the circumstances above, the applicants are eligible for either re-credit of Cenvat credit utilized for payment of duty or for refund of the duty paid on export goods. 4.3 Notwithstanding anything contained in the Board's clarification vide C.B.E. & C. Circular No. 937/27/2010-CX., dated 26-11-2010 issued in F. No. 52/l/2009-CX.1 pt, the applicants are entitled for refund of the Cenvat credit availed either by cash or by re-credit in the Cenvat account as no duty is payable on export goods. The amount paid as per the provisions of Rule 18 of CER, 2002 may be treated as deposit in the absence of the final goods attracts nil rate of duty and may be refunded to the assessee. ....
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.... Act, 1944. Commissioner (Appeals) has upheld order-in-original relying on the Section 5A(1A) of the Central Excise Act, 1944 and C.B.E. & C. Circular No. 937/27/2010-CX., dated 26-11-2010 and held that the applicants are not eligible for any rebate for the duty paid on the exempted goods during the said period 14-2-2009 to 19-2-2009. 8. Government notes that C.B.E. & C. Circular No. 937/27/2010-CX., dated 26-11-2010 has clarified the issue as under : "References had been received from the field formations as well as trade to clarify the ambiguity arising out of simultaneous prevalence of two exemption notifications namely 29/2004-C.E., dated 9-7-2004 as amended by notification No. 58/2008-C.E., dated 7-12-2008 and another notificati....
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.... of Law Ministry has been accepted by the Board, pending issues, if any, may be decided accordingly." The C.B.E. & C. Circular has clearly stipulated that in view of specific bar provided under Section 5A(1A) of Central Excise Act, 1944, manufacturer cannot opt to pay duty under Notification No. 59/2008-C.E., dated 7-12-2008 and rebate of duty. 9. Government observes that as per explanation 1(A) to Section 5(A) of Central Excise Act, 1944 the manufacturer of such goods has no option to pay Central Excise duty since Notification No. 29/2004-C.E., dated 9-7-2004 as amended, issued under Section 5A(1A) of Central Excise Act, 1944 grants unconditional exemption from whole of duty. The duty paid cannot be treated as duty paid under the pr....