2013 (11) TMI 1528 - CGOVT - Central Excise

Denial rebate claim - duty @ 4% under Notification No. 4/2006-C.E., dated 1-3-2006 or under Notification No. 2/2008-C.E., dated 1-3-2008, at rate of duty of 10% - Held that - Applicant are clearing goods for home consumption on payment of duty @ 4% in terms of Notification No. 4/2006-C.E. as amended. The C.B.E. & C. Instructions state that export goods are to be assessed in the same manner as the goods for home consumption. So, applicant has to assess all goods whether cleared for export or home consumption in a same manner. - departmental authorities are bound by C. B. E. & C. Circulars/Instructions and they have to comply with the same. Hon ble Supreme Court has held in the case of Paper Products Ltd. v. CCE, 1999 (8) TMI 70 - SUPREME COURT OF INDIA that circulars issued by C.B.E. & C. are binding on departmental authorities, they cannot take a contrary stand and department cannot repudiate a circular issued by Board on the basis that it was inconsistent with the statutory provision. Hon ble Apex has further held that department s actions have to be consistent with the circulars, consistency and discipline are of far greater importance than winning or losing Court proceedings. - In view of this position, Government upholds the applicability of above said C.B.E. & C. Instructions in this case. Applicants are not eligible to claim of rebate of duty paid @ 10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @ 4% in terms of exemption Notification No. 4/2006-C.E., dated 1-3-2006 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended, on the transaction value of exported goods determined under Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% is to be treated as voluntary deposit made by manufacturer with the Government. The excess paid amount may be allowed to be re-credited in the Cenvat credit account of the manufacturer subject to compliance of the provisions of Section 12B of Central Excise Act, 1944. - Decision in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI 2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT - no infirmity in the impugned order-in-appeal - Decided against assessee.

Issues Involved:
1. Violation of principles of natural justice by not issuing a show cause notice.
2. Applicability of different duty rates under Notification No. 4/2006-C.E. and Notification No. 2/2008-C.E.
3. Eligibility to claim rebate of duty paid at a higher rate for exported goods.
4. Interpretation of relevant Central Excise Rules and Notifications.
5. Binding nature of CBEC Circulars/Instructions on departmental authorities.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The applicant argued that the Assistant Commissioner violated the principles of natural justice by not issuing a show cause notice. The primary purpose of the show cause notice is to put the aggrieved party on notice of facts and necessary ingredients of a charge to enable them to effectively meet it. This is a cardinal principle of natural justice, as supported by the Supreme Court judgment in Ramana Dasaram Sheety v. The International Airport Authority of India and Others.

2. Applicability of Different Duty Rates:
The applicant contended that they correctly paid duty at the rate of 10% under Notification No. 2/2008-C.E. for exported goods, while paying 4% for domestic clearance under Notification No. 4/2006-C.E. The Assistant Commissioner's finding that the applicant should have uniformly applied the 4% duty rate for both domestic and export clearances was challenged. The applicant argued that the effective rate of duty during the relevant period was indeed 10% as per the amended Notification No. 2/2008-C.E.

3. Eligibility to Claim Rebate of Duty Paid at a Higher Rate:
The applicant argued that the entire rebate claim should be paid in cash, as the duty was correctly paid at 10% for the exported goods. They contended that the department has no jurisdiction to direct or force the assessee to follow a particular notification beneficial to revenue. The Assistant Commissioner's reliance on previous judgments was deemed incorrect as the facts of those cases were different.

4. Interpretation of Relevant Central Excise Rules and Notifications:
The applicant emphasized that as per Rule 18 of the Central Excise Rules, 2002, the rebate of duty paid on excisable goods exported should be granted by the Central Government. They argued that the duty paid should be understood as the duty actually paid on the goods, which in this case was 10% as per Notification No. 2/2008-C.E. They also highlighted the distinction between tariff rates and effective rates set forth by various notifications under Section 5A(1) of the Central Excise Act, 1944.

5. Binding Nature of CBEC Circulars/Instructions:
The government observed that CBEC instructions regarding the assessment of export goods are relevant. As per Para 4.1 of Part-I of Chapter 8 of the CBEC Excise Manual, export goods should be assessed in the same manner as goods for home consumption. The classification and rate of duty should be as per the Central Excise Tariff Act, read with any exemption notification. The instructions clearly stipulate that the effective rate of duty will be as per the exemption notification, and this was binding on the departmental authorities.

Conclusion:
The government upheld the original and appellate orders, stating that the rebate is admissible only to the extent of duty paid at the effective rate of 4% under Notification No. 4/2006-C.E., as amended. The excess duty paid at 10% was treated as a voluntary deposit, and the amount could be re-credited in the Cenvat credit account, subject to compliance with Section 12B of the Central Excise Act, 1944. The revision application was rejected for lack of merit.

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