2012 (8) TMI 897

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....f one sixty days of sanction of rebate claims as per C.B.E. & C. Circular No. 354/70/97-CX., dated 13-11-1997. Adjudicating authority after following the due process of law, vide Order-in-Original No. 15/09-10, dated 31-8-2009, demand amounting to Rs. 12,84,139/- was confirmed along with interest and penalty of Rs. 9,000/- in all cases was imposed. 3. Being aggrieved with the impugned Order-in-Original applicant filed appeal before Commissioner of Central Excise (Appeals). Applicant produced in this appeal, BRCs before Commissioner (Appeals) who directed the adjudicating authority verify said BRCs in 15 days. The impugned Order-in-Original was set aside and appeal of applicant was allowed. 4. Being aggrieved with the above orders-in-appeal, the applicant department has filed this revision application under Section 35EE of the Central Excise Act, 1944 before Government on following grounds : 4.1 The Commissioner (Appeals), in his Order-in-Appeal No. 146/CE/DLH/2010, dated 8-9-2010, has made grave error, by holding that the demand under Section 11A of the Central Excise Act, 1944, for recovery of rebate claims erroneously sanctioned, cannot be raised without r....

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....ity was right in confirming the demand of Rs. 1,38,992/- against the above-mentioned Shipping Bill, along with interest at the appropriate rate under Section 11AB of the Central Excise Act, 1944 and a imposing penalty of Rs. 1,000/- (in each case separately) under Rule 27 of the Central Excise Rules, 2002. 4.5 The applicant department has relied upon following case laws in their favour :- (i)      Union of India v. Jain Shudh Vanaspati Ltd. - 1996 (86) E.L.T. 460 (S.C.) (ii)    Collector of Central Excise, Bhubaneshwar v. Re-rolling Mills - 1997 (94) E.L.T. 8 (S.C.) (iii)   ITI Ltd. v. Commr. of Cus. ACC, Mumbai - 2008 (228) E.L.T. 78 (Tri.- Mumbai) (iv)   Roofit Industries Ltd. v. CCE, Chennai - 2005 (191) E.L.T. 635 (Tri.-Chennai) (v)     Ogilvy & Mather Pvt. Ltd. v. Commr. of Service Tax, Bangalore - 2010 (18) S.T.R. 502 (Tri.-Bang.). 5. Show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. The respondents vide their written submission dated 27-6-2012 stated as following :- 5.1 There had been a....

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....t, 1999. So, there is a prohibition on export of goods which are exported in violation of provision of FEMA, 1999. The relevant provisions of FEMA, 1999 are as under :- 9.1 Section 7(i) of Foreign Exchange Management Act, 1999 stipulates that every exporter of goods shall- (a)     Furnish to the Reserve Bank or to such other authority a declaration in such form and in such manner as may be specified, containing true and correct material particulars, including the amount representing the full export value or, if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in a market outside India. (b)     Furnish to Reverse Bank such other information as may be required by the Reverse Bank for the purpose of ensuring the realization of the export proceeds by such exporter. 9.2 Section 8 of Foreign Exchange Management Act, 1999 stipulates as under :- Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any person resident in India....

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.... have also laid down the same principles. 10.1 In the case of Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.), the Apex Court has held in Paras 5, 6 & 7 as under : "5. It is patent that a Show Cause Notice under the provisions of section 28 for payment of Customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance under Section 47 of the concerned goods. Further, Section 28 provides time limits for the issuance of the Show Cause Notice thereunder commencing from the "relevant date"; "relevant date" is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be the date on which the order for clearance of the goods has been made in a case where duty has not been levied; which is to say that the date upon which the permissible period begins to run is the date of the order under Section 47. The High Court was, therefore, in error in coming to the conclusion that no Show Cause Notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130." 10.2 While referring to the above-mentioned case law in the c....