9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (7) TMI 185 - CGOVT - Central ExciseRefund in cash - export of goods - refund of duty paid in excess through cenvat credit - voluntary excess payment of duty - Held that - As decided in BELAPUR SUGAR & ALLIED INDUS. LTD. Versus CCE 1999 (4) TMI 79 - SUPREME COURT OF INDIA . Even if duty paid under ignorance of law or otherwise, the rebate cannot be refused since party has paid the duty. Further, Hon ble Apex Court has held that if the duty paid shown to be not leviable or entitled for rebate, the revenue has to refund, adjust, credit such amount to the assessee as the case may be. Restriction on the rebate claim to the extent of duty paid @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006, on the FOB value which is determined in these cases as transaction value in terms of Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E. on the transaction value of exported goods, is to be treated as voluntary deposit made by applicant with the Government. In such cases where duty is paid in excess of duty actually payable as held by Hon ble Apex Court in the case discussed in M/s. Nahar Industrial Enterprises Ltd. v. UOI 2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT , wherein Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable. Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate - assessee had paid duty on export goods at tariff rate of 16% ignoring the exemption Notification No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 prescribing duty @ 4% and nil respectively. In this case, original authority had allowed rebate of duty paid at effective rate of 4% and allowed recredit of balance amount in the Cenvat credit account of assessee. above, the excess paid amount is to be returned/adjusted in Cenvat credit account of assessee - allowed the recredit of excess paid amount of duty in their Cenvat credit account. - Decided against the Assessee.
Issues Involved:
1. Eligibility to claim rebate of duty paid at a higher rate under Notification No. 2/2008-C.E. 2. Rebate on free samples with no foreign remittance. 3. Determination of transaction value for rebate purposes. 4. Applicability of two different notifications for the same goods. 5. Mode of refund for excess duty paid. Issue-Wise Detailed Analysis: 1. Eligibility to Claim Rebate of Duty Paid at a Higher Rate: The applicant contended that they were eligible to claim a rebate of duty paid at 10% under Notification No. 2/2008-C.E. instead of the effective rate of 4% under Notification No. 4/2006-C.E. The government noted that the applicant had been clearing goods for home consumption at 4% but opted to pay 10% on export goods post-Budget 2010 to encash accumulated Cenvat credit. The government concluded that duty was payable at 4% on export goods as well, and rebate cannot be granted on the excess duty paid, citing C.B.E. & C. Instructions that export goods must be assessed in the same manner as goods for home consumption. 2. Rebate on Free Samples with No Foreign Remittance: The applicant argued that rebate on free samples should not be denied. The government upheld the lower authorities' decision that since no foreign remittance was received for free samples, rebate was rightly denied under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.). However, the amount paid as duty on free samples was allowed to be re-credited to the Cenvat credit account. 3. Determination of Transaction Value for Rebate Purposes: The applicant contested the decision of lower authorities regarding the determination of transaction value based on the lower FOB value declared in the Shipping Bill. The government observed that the place of removal is within the geographical limits of India, and the transaction value should be determined as per Section 4 of the Central Excise Act, 1944. The adjudicating authority rightly considered the FOB value as the transaction value and sanctioned rebate accordingly, allowing re-credit of any excess duty paid. 4. Applicability of Two Different Notifications for the Same Goods: The applicant contended that they could choose the notification beneficial to them. The government clarified that Notification No. 2/2008-C.E. prescribed the General Tariff rate, while Notification No. 4/2006-C.E. prescribed the effective rate. Both notifications must be read together, and the effective rate of 4% should be applied. The government emphasized that the applicant could not avail benefits from both notifications simultaneously and must choose one notification for all clearances. 5. Mode of Refund for Excess Duty Paid: The applicant argued that the rebate should be given as a cheque rather than re-crediting the Cenvat credit account. The government upheld the lower authorities' decision to re-credit the excess duty paid in the Cenvat credit account, citing that the excess paid amount cannot be retained by the government without any authority of law. The government referenced the Hon'ble High Court of Punjab & Haryana's decision in M/s. Nahar Industrial Enterprises Ltd. v. UOI, which supported refund by way of credit for the excess duty paid. Conclusion: The government found no merit in the contentions of the applicant and upheld the decisions of the lower authorities. The revision applications were rejected, and the orders-in-original and orders-in-appeal were affirmed. The rebate was restricted to the duty paid at the effective rate of 4%, and any excess amount paid was to be re-credited to the Cenvat credit account.
|
