TaxTMI 
TaxTMI 
2012 (6) TMI 777
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....nst O-I-A No./date 1-4. 195/789-792/10-RA-CX YDB/401-404/RGD/10, dated 20-7-2010 5-6. 195/111-112/11-RA-CX YDB/825-826/RGD/10, dated 19-11-2010 2. Brief facts of the case are as under :- 2.1 RA No. 195/789-792/10-RA-CX :- Brief facts of case (in respect of order-in-appeal No. YDB/401-404/RGD/2010, dated 20-7-2010) are that the applicant M/s. Positive Packaging Industries Ltd. were having unit registered as a 100% EOU. They applied for de-bonding on 13-2-2008. The stock of the finished goods and other materials was ascertained and duty assessed was paid on 15-2-2008. A final de-bonding Order No. SEEPZ-SEZ/EOU25/03-04/Vol.II/1634, dated 11-3-2008 was also issued by the Development Commissioner, SEEPZ, Mumbai.....
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..... 4. Being aggrieved by the impugned order-in-appeal, the applicant Commissioner filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 Ground of revision application in respect of R.A. No. 195/111-112/11-RA (orders-in-appeal No. YDB/825-826/RGD/2010, dated 19-11-2010) :- 4.1.1 That payment of duty at the time of de-bonding does not amount to clearance of goods from the factory. Reliance was also placed on decision on the Hon'ble Tribunal in the case of Indo Rama Synthetics (I) Ltd. v. CCE, Nagpur reported in 2005 (190) E.L.T. 193 (Tri.-Mum.) held that by mere change in ownership & possession "Removal" of goods cannot be construed (Para ....
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....d the goods for export only on 30-1-2009 and 31-1-2009 which is evident from the export documents duly certified by the Range Authorities. They rely upon the judgment in the matter of Bharat Chemicals v. CCE, Thane reported in 2004 (170) E.L.T. 568 (Tri.-Mumbai) wherein it has been held that actual amount of 'duty paid' to be returned as rebate and not the amount of duty payable.' 4.2 Ground of revision application No. 195/789-792/10 in respect of orders-in-appeal No. YDB/401-404/RGD/2010, dated 20-7-2010. 4.2.1 The Commissioner (Appeals) erred in rejecting the claim on the ground that in view of Para 8.4 of Chapter 8 of C.B.E. & C.'s Excise Manual of Supplementary Instructions the adjudicating authority correctly sanctioned....
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....tes that duty as shown in ARE-1 only should be rebated. That without prejudice to their contention procedural lapse if any should not deprive them from the legitimate export incentives such as rebate of actual duty paid in the instant case. 4.2.3 The Commissioner (Appeals) erred in not considering the requirement of payment of duty at the time of de-bonding. The applicant submits that it has been provided under Annexure 14-I-L (Guidelines) annexed to the Handbook of Procedures under Foreign Trade Policy applicable for the relevant period applicable customs and excise duties would be paid on the imported an indigenous capital goods, raw materials, components, consumables, spares and finished goods in stock at the time of de-bonding. ....
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....e, the reliance placed on judgment in case of Bharat Chemicals v. CCE, Thane is misplaced and has no relevance with the instant case of applicant. 6. The case was listed for personal hearing on 19-1-2012 at Mumbai. Shri P.K. Shetty, Advocate and Shri Vikrant Apte, Deputy Manager appeared for the applicants and reiterated the grounds of revision application. On their request another personal hearing dated 19-4-2012 was scheduled but nobody appeared for personal hearing on behalf of the applicant side as well as respondent side on 19-4-2012. 7. Government has considered the written submissions of the applicant and also perused the orders passed by the lower authorities. 8. Government notes that the factual details of i....
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....viously paid at the time of conversion/de-bonding of erstwhile 100% EOUs. Further the applicant exporter herein is although not controverting the applicability of the provisions as above but is stressing that interpretation of all such provisions does not de-bar the rebate of duty as paid by him in any form at any previous times. 10. In reference to above Government is of the considered opinion that when statutory provisions of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 are read in proper perspective along with instructions contained in Chapter 8 (Para 8.4) of C.B.E. & C.'s Excise Manual of Supplementary Instructions then it becomes clear that rebate of only that much amo....