COMMISSIONER Vs. JAYANT OIL MILLS

JUDGEMENT

(1.) THIS petition has been filed by the Commissioner, Central Excise and Customs, Vadodara II, challenging the legality and validity of order No. 01-03/2004 dated 16. 1. 2004 made by Government of India in Revision Application filed by the respondent herein.

(2.) THE respondent (hereinafter referred to as "the assessee") is engaged in the manufacture of goods which are exported out of India. It is an accepted position that the goods so manufactured by the respondent are excisable goods. It is also an accepted position that in case of duty paid excisable goods where such goods are exported outside India, rebate of the duty paid is available, provided the Central Government issues a notification in this regard and the conditions laid down in the notification have been complied with. This is provided for in Rule 12 of the Central Excise Rules, 1944 (the Rules ).

(3.) A sum of Rs. 10,667/- was claimed as rebate by the assessee which was rejected by three Orders -in-Original dated 23. 5. 2002, 24. 5. 2002 and 24. 5. 2002 (Annexures "c", "d" and "e" respectively ). These orders were carried in appeal before the Commissioner (Appeals), who vide consolidated order dated 7. 3. 2003, upheld the orders made by the Adjudicating Authority. The reason which weighed with the Adjudicating Authority and the Appellate Authority is that the assessee made payment of duty on exempted goods, which is wrong and irregular, and the assessee cannot pay duty on his own volition in respect of exempted goods. According to the authorities, the product of the assessee is exempt from payment of the entire duty under Notification No. 115/75-CE dated 30. 4. 1975, as amended by Notification No. 7 of 1998 dated 2. 6. 1998. The Appellate Authority also relied on Circular No. 2/91-CX-3 dated 4. 1. 1991 issued by the Central Board of Excise and Customs [cbec], to state that an assessee has no option to pay duty on his own volition in case the goods are fully exempt from payment of duty.