Custom, Excise & Service Tax Tribunal
Cce Ludhiana vs M/S Vardhman Spinning & General Mills on 5 February, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
E/Appeal No.39/2006-SM
(Arising out of order in appeal No.247/CE/Appl/Ldh/05 dated 29.4.05 passed by the Commissioner of Central Excise (Appeals), Ludhiana)
For approval and signature:
Honble Mr.P.K. Das, Member(Judicial))
1. Whether Press reporters may be allowed to see the
order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy
of the Order ?
4. Whether Order is to be circulated to the
Departmental authorities?
______________________________________________________
CCE Ludhiana Appellant
(Rep. by Shri S. GautamDR)
Vs
M/s Vardhman Spinning & General Mills Respondent
(Rep. by Shri Rupinder Singh, Advocate) Coram: Honble Mr P.K. Das, Member(Judicial) Date of Hearing: 5 .2.2008 Order No. /2008-SM(BR) Per P.K. Das:
The Revenue filed this appeal against the order of the Commissioner (Appeals) whereby adjudication order was set aside and the refund of duty was allowed.
2. The relevant facts of the case, in brief, are that the respondent cleared the goods to Nepal on payment of duty. Subsequently, they noticed that they were entitled to clear the goods without payment of duty under Notification No. 45/2001-CE(NT) dated 26.6.2001. The Adjudicating Authority rejected the refund claim. The Commissioner (Appeals) after examining the documents allowed the refund claim and relied upon the decision of the Honble Supreme Court in the case of Share Medical Care Vs Union of India reported in 2007 (209) ELT 321.
3. The learned DR on behalf of the Revenue, contended that the Adjudicating Authority rightly rejected the refund claim. He submits that the Respondents claimed the benefit of Notification No. 45/2001-CE dated 26.6.2001 during the adjudication proceedings which was not mentioned in the refund claim application. He submits that the respondents failed to comply with the condition of Notification.
4. After hearing both the sides and on perusal of record, I find that the adjudicating authority rejected the refund claim on the ground that the Respondents failed to comply with the condition of Notification No.45/2001-CE(NT) dated 26.6.2001. It is observed by the Commissioner (Appeals) that the Respondents complied with the condition of the notification in as much as letter of credit was obtained from the buyer in their name before the export of goods and the entire amount was received in foreign exchange. The Honble Supreme Court in the case of Share Medical Care (supra) held that even if an applicant does not claim benefit under a particular notification at initial stage, he is not debarred from claiming such benefit at a later stage. It is contended by the learned DR that the procedure of clearance of goods without payment of duty and on payment of duty are mutually exchange and the party is not at liberty follow both procedures at a time. It is seen that the Honble Supreme Court in the case of Share Medical Care (supra) held that if the applicant is entitled to benefit under two different notifications, he can claim more benefit and it is the duty of authorities to grant such benefits, if applicant is entitled to such benefit.
5. In view of the above, I do not find any reason to interfere with the order of the Commissioner (appeals). Accordingly, the appeal filed by the Revenue is rejected.
(Order dictated and pronounced in the open Court).
(P.K. Das)
MPS* Member(Judicial)