JHAVERI,J. - (1.) By way of this writ petition, the Central Government has challenged the judgment and order of the Revisional Authority dated 29.09.2006 and challenged the earlier order of the Appellate Authority.
(2.) The facts of the case are that the respondent M/S Capital Impex (P) Ltd. is engaged in the manufacture of S.S. Utensils falling under sub heading No.7323.90 of the Schedule to the Central Excise Tariff Act, 1985. The tariff heading is exempted from duty under Notification No.10/2003-CE dated 01.03.2003, making the effective rate as nil. 2.1 The respondent paid Central Excise Duty on clearance of goods which were exported under claim for rebate of duty. The respondent filed rebate claim on the ground that they had exported the goods on payment of excise duty. 2.2 The Assistant Commissioner sanctioned the rebate claim of the respondent the Commissioner directed the Deputy Commissioner to file review against the said order. 2.3 The department filed appeals before the Commissioner (Appeals) and the Commissioner (Appeals) allowed the same and held that the respondent is entitled to get rebate under the law. 2.4 The petitioner aggrieved of the said order preferred an appeal before CESTAT who transferred the same to the Joint Secretary Government of India for the reason that revision instead of appeal was maintainable. The Joint Secretary rejected the said revision. Hence, the present writ petition.
(3.) The reasoning adopted by the Revisional Authority reads as under: "13. Govt., further notes that Hon'ble Apex Court has taken in similar view in case of Commissioner of Central Excise and Customs (Appeals), Ahmedabad v. Narayana Polyplast, 2005(179) E.L.T. 20(S.C.)., the relevant para of the judgement is extracted as below:- "The Dept. is in appeal before us. Apart from the question whether the Dept. ought to be allowed to question the decision of the Tribunal when the Tribunal had merely relied upon its earlier decision which decision has not been challenged by the Dept., we are of the view that there is no necessity to interfere with the decision of the tribunal in view of fact that it is admitted case as stated in the special leave petition, that the issue is merely technical and that there was no revenue implication." 14. Govt. further notes that the issue pertain prior to 13th May, 2005, when amendment in Section 5A of the Central Excise Act, 1944, was made to the effect that when the exemption under sub section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer, of such excisable goods shall not pay the duty of excise on such goods." 15. The applicant Commissioner further pleaded that in case the respondents are found to be eligible for rebate, the respondents may be allowed to take the credit of this amount in their Cenvat Credit Account. On this contention Govt., would observe that points concerning mode of payment Board's Circular No. 687/3/2002- Cx. Dated 31.3.2003, (F. No. 267/57/2002-Cx. VIII) makes it clear that the rebate of duty paid on goods exported and duty paid through credit accounts is to be refunded in cash. 16. In view of facts and circumstances as discussed above Govt., finds no infirmity in the impugned order-in-Appeal, and Govt., accordingly upholds the impugned order-in-appeal. The revision Applications, accordingly are rejected." ;