TaxTMI 
TaxTMI 
2020 (1) TMI 540
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....t and Rules made under. 2. Brief facts of the case are that the Appellant is 100% Export Oriented Unit engaged in the manufacture of sale of mouth freshener classifiable under Tariff Entry 21069070 of Central Excise Act, 1985 during the year 2008-09 and 2009-10 (for short "the relevant period"). During the course of their business the appellant purchased mouth freshener in bulk pack of 1 Kg. pouch as input from one M/s Vishal Distributor which after processing was re-packed in 200gm and 500gm poly packets and in small card board boxes which were subsequently exported. While exporting the appellant paid the duty by utilising for cenvat credit and cleared the final product from its factory for export under the prescribed procedure under the provision of excise officer in charge of the factory. As the appellant was procuring the goods from M/s Vishal Distributors, who assessed their goods under the provisions of Section 4A of Customs Act, the same was followed by the exporter. During the year 2008-09 the appellant has availed the cenvat credit to the tune of Rs. 2,69,32,739/- on purchases from M/s Vishal Distributors out of which an amount of Rs. 1,55,06,226/- was debited by the ap....
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....o be taken as re-credit, the appellant would not be able to utilise the same, and therefore, cash rebate is to be ordered to pay in terms of Cenvat Credit Rules. Regarding the export made by the appellant as merchant exporter it is his submission that the appellant has purchase the goods from its supplier on payment of applicable central excise duty and taken credit in terms of credit rules. The appellant has exported the goods after reprocessing in their factory and export the same. The appellant filed the refund claim of the duty suffered on the export products by way of rebate under Rule 18 of the 2006 Rules. The appellant is not concerned with the price of their supplier which could be higher or otherwise. The appellant in their normal course of business has purchased the export goods (mouth freshener) and paid applicable rate of duty. Department have not brought any evidence to substantiate that the appellant and the supplier of the export goods are anyway related and were in hand and glove regarding the determination of price of the export product by any fraudulent means. Accordingly, he prays for setting aside of the impugned order. 5. Learned Departmental Representative ....
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....hdrew the same, with a request to lower authorities, seeking permission to re-credit the amount in their Cenvat account; this legitimate request of the appellant is also dismissed by the lower authorities. In my view, the lower authorities have erred in passing the order of rejecting the request of re-credit of the amount paid by the appellant and not due to the Government. To me, the impugned order is not in consonance with the law settled by the higher judicial forums, holding that duty collected without authority of law cannot be retained by the Government." 8. In view of above, we of the opinion that the impugned order is incorrect on this score. Regarding the denial of rebate by the appellant as merchant exporter, we find that the export goods have been purchased on payment of duty to the supplier of the goods, and therefore, the appellant is legally permitted to avail rebate on the export product to the extent of Central Excise Duty paid. The violation at the end of supplier of the goods is not within control of the appellant. The Department has not objected the payment of duty at the time of their clearance from the supplier's factory. In fact has suffer central excise du....
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....the Noticee No. 4, the total assessable value was found to be 18,99,92,952/- (Rupees Eighteen Ninety Nine Lakh Ninety Two Thousand Nine Hundred Fifty Two Only) and against this, the total transaction value was shown as 4,39,75,872/-(Rupees Four Crore Thirty Nine Lakh Seventy Five Thousand Eight Hundred Seventy Two Only) in the respective tax Invoices, which were meant for Sales Tax purpose. 21.2 I find that based on the higher assessable value, the Noticee No. 4 paid total Cenvat duty of 1,51,99,436/- (Rupees One Crore Fifty One Lakh Ninety Nine Thousand Four Hundred Thirty Six only) and Education Cess of 4,55,983( Rupees Four Lakh Fifty Five Thousand Nine Hundred Eighty Three Only) from their Cenvat credit account under Section 4A ibid. Therefore, M/s Vishal Distributors (Manufacturing unit) by showing higher assessable value and paying Central Excise Duty from their Cenvat Credit account under Section 4A had facilitated Ektara Export Pvt Ltd. to claim higher export rebate under Rules 18 of Central Excise Rules, 2002. It is a settled issue in law that in case of export, the valuation must be under Section 4 of Central Excise Act, 1944. Therefore, it appears that the Notic....
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....ply to the Show Cause Notice and during the course of personal hearing but I do not find any force in their submissions as they could not given any evidence to justify the same. The investigation, however, has been able to justify the charges against the Noticee No. 7 by adducing adequate evidence. 21.10 I, therefore, fully agree with the investigation that the Noticee No. 7 as merchant exporter had also violated the Rule 18 of Central Excise Rules, 2012 in as much as they claimed excess duty rebate in respect of the product exporter in 2008-09 and 2009-10. Excess Central Excise duty rebate under Rule 18 of Central Excise Rules, 2002 as claimed by the Noticee NO. 7 in respect of the product exported by them as merchant exporter on purchase from the Noticee No. 4 during the period 2008-09 and 2009-10 was quantified as the difference between the excess Central Excise duty, Education Cess and Secondary & Higher Education Cess paid by the Noticee No. 4 based on incorrect duty assessment under Section 4A of CA Act, 1944 and the actual Central Excise duty, Education Cess and Secondary & Higher Education Cess leviable and payble based on assessment of duty under Section 4 of CE A....
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.... and exported the product under the provisions of Rule 18 of Central Excise Rules. In the circumstances it will not be appropriate to ask the Appellant not to avail the rebate of the duty paid by it under the provisions of Rule 18 of the Central Excise Rules. 8. We also find that the assessment has been completed by the Departmental officer at the manufacturers/suppliers end which cannot be changed by the jurisdictional officer of the Appellant unit in terms of Rule 3 of Cenvat Credit Rules 2004. In this regard reliance is placed on the decision of Hon'ble Supreme Court in case of Commissioner of Central Excise and Customs vs. MDS Switchgear Limited[ 2008 (229) ELT 28 (SC)]. The relevant paragraph of the order is as follows: 7. The Tribunal has come to the conclusion that in fact there was no loss of revenue. It accepted the appeal by recording the following reasons : "Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the Modvat credit on the earlier inputs. That exercise has nowhere been do....
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....had been short paid. They then appealed against penalty which had been levied on them. The Commissioner (Appeals) waived penalty on the ground that short payment was not by reason of any fraud, collusion or any wilful mis-statement or suppression of facts. The appeal filed by the Department against that order was dismissed on the ground of non-compliance with statutory provisions. Thus, the order of Commissioner (Appeals) in the case of M/s. Gopi Synthetics has attained finality. In their case it has been held that short payment was not due to any fraud, collusion or any wilful mis-statement or suppression of facts. 4.The only ground on which the appellants have been denied rebate is that M/s. Gopi Synthetics (the manufacturer) had short paid duty. Even though M/s. Gopi Synthetics has since paid the duty and it has been finally held that there was no fraud, collusion or any wilful mis-statement or suppression of facts, rebate is being denied to the appellants. This is being done on the specious plea that it was the duty of the appellants, before he exported the goods, to see that the correct amount of duty had been paid. We are unable to accept this submission. Benefit of ....
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....2006 (203) E.L.T. 120 (Tri.- Mum.)] accepting the case of the respondent-assessee, meaning thereby, the price of Rs. 640/- as declared by the assessee is found to be genuine. A perusal of the order reveals that the CESTAT has noted that the respondents purchased the CD ROMs from the local market directly from the manufacturer. The purchase price of Rs. 640/- has not been challenged. It is not the case of the Department that the transaction between the manufacturer and the respondents is not genuine. It is also not Department's case that the transaction between the respondents and the foreign buyers is not genuine. Respondents have procured the goods for valuable consideration and in turn, received the foreign exchange fully for the sale of goods to the foreign buyers. Therefore, there is no reason to discard the transaction value as between the manufacturer and the respondents nor as between the respondents and foreign buyers. The CESTAT also found that the Department has not shown that at the time and place of exportation, such or like goods have been exported from India at much lower price as claimed by the Department. It is also an accepted fact that the respondents and foreign ....