Commissioner of C.Ex. vs Suncity Alloys Pvt. Ltd.

Both these petitions raise identical and simple questions. In both cases the respondent manufacturer has exported goods manufactured by him by paying duty thereon while removing goods from factory and then has claimed rebate of the duty paid by him as the goods were exempted from payment of duty.

The Revenue has contended that since goods exported out of country were exempted from payment of duty, therefore, the amount paid by the respondent manufacturer in each case cannot be treated as duty paid and he is not entitled to rebate on account of duty paid on goods removed from factory/authorised warehouse for export out of India.

However, there is no dispute about the fact that the petitioner Union of India is not, in any event, entitled to retain the amount in question. If no duty was leviable and the assessee was not required to pay the duty still if he has paid the duty which has been received by the petitioners they cannot retain the same on any ground and must refund the amount received from the assessee as on their own showing.

It has not received the amount by way of duty which could be appropriated by them nor to which Section 11B applies. If on the other hand the assessee is held entitled to remove the goods on payment of duty in ordinary course and then he is entitled to claim rebate thereon because the goods were exported out of country as payment of excise duty thereon. In either case the result is the same.

In that view of the matter, the question raised in the writ petition is academic for the purpose of these two cases and need not be gone into details.

Accordingly, the writ petitions are dismissed.

No orders as to costs.