2014 (1) TMI 968 - AT - Customs

Claim of Rebate of duty on Export made under Rule 18 - Conditions of Notification no. 93/2004-Cs versus Notification no. 94/2004-Cus - Denial of exemption notification 94/2004 dated 10-9-2004 - Goods imported under notification no. 94/2004 under advance licence for annual requirement or advance authorisation for annual requirement with actual user condition - Held that - Notification 94/2004 has been issued in the context of import under advance licence for annual requirement or advance authorisation for annual requirement with actual user condition issued to Star Export Houses and Notification 93/2004 has been issued in the context of Import of Advance Licence/Advance Authorisation. The contention of the appellant is that Condition (v) of the Notification 93/2004 is similar to Condition (8) of Notification 94/2004 ibid. The Notification 93/2004 was amended with effect from 17-5-2005 - Condition (v) prior to amendment was similar to Condition (8) of Notification 94/2004. In this manner, prior to amendment the condition implicitly provided that facility has not been availed in case of inputs/raw materials under Rule 18 and Rule 19(2) and after amendment it explicitly provided for the same i.e. facility has not been availed in case of inputs/raw materials under Rule 18 and Rule 19(2) - only bar is in case of rebate taken on inputs/raw materials used in case of Rule 18 also as in the case of Rule 19. So far as the contention of the department that Notification 93/2004 has been issued in the context of imports under Advance Licence/Advance Authorisation. The Notification 93/2004 exempts material imported from whole of duty of Customs, whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon respectively, under Sections 3, 8 and 9A of the Customs Tariff Act, 1975; and similarly, Notification 94/2004 also exempts material from whole of the duty of Customs and whole of the additional duty leviable thereon under Section 3 of the Customs Tariff Act, 1975. In these circumstances, who avails advance licence on annual basis on actual user condition cannot be put at disadvantage vis-a-vis one who avails facility of advance licence on consignment basis. Benefit of Notification No. 94/2004 is not barred in case facility of rebate on duty paid on finished goods cleared for export is availed - Decided in favour of assessee.

Issues Involved:
1. Interpretation of Condition No. 8 of Notification No. 94/2004-Cus regarding availing rebate on duty paid on finished goods.
2. Fulfillment of Condition Nos. 9 and 10 of Notification No. 94/2004-Cus.
3. Discrimination in the application of the Notification.

Detailed Analysis:

1. Interpretation of Condition No. 8 of Notification No. 94/2004-Cus:
The core issue is whether the benefit of Notification No. 94/2004-Cus is barred if the facility of rebate on duty paid on finished goods cleared for export is availed. The appellant contended that Condition No. 8 should only bar the rebate of duty paid on inputs used in the manufacture of exported goods, not the rebate on the finished product itself. They argued for a contextual interpretation, applying the principle of ejusdem generis, suggesting that the phrase "facility under Rule 18 or sub-rule (2) of Rule 19 of the Central Excise Rules, 2002" should be read to mean the facility of rebate on inputs, not finished goods.

The Revenue argued that Condition No. 8 clearly bars the availing of facilities under Rule 18 and Rule 19(2), which includes both rebates on inputs and finished goods. They highlighted that no corrigendum similar to Notification No. 93/2004-Cus was issued for Notification No. 94/2004-Cus, indicating a deliberate distinction.

The Tribunal concluded that Condition No. 8, when read with Rule 18 and Rule 19, implies that the bar is on availing the facility of rebate on inputs/raw materials used in the manufacture of resultant products, not on the rebate of duty on finished goods. This interpretation aligns with the principle of ejusdem generis, avoiding discriminatory treatment between different types of exporters.

2. Fulfillment of Condition Nos. 9 and 10 of Notification No. 94/2004-Cus:
The appellant produced an Export Obligation Discharge Certificate (EODC) issued by the DGFT, which was later withdrawn. The Tribunal remanded the case to the Commissioner to ascertain whether Condition Nos. 9 and 10 were fulfilled, allowing the appellant to produce supporting documents.

3. Discrimination in the Application of the Notification:
The appellant argued that interpreting Condition No. 8 to bar the rebate on finished goods would result in discrimination, as it would treat exporters differently based on whether they export under bond or claim a rebate. The Tribunal agreed, citing the Supreme Court's decision in Hindustan Petroleum Corporation Ltd., which emphasized avoiding discriminatory outcomes in interpreting rules and notifications.

Conclusion:
The Tribunal allowed the appeal to the extent that the benefit of Notification No. 94/2004-Cus is not barred if the facility of rebate on duty paid on finished goods cleared for export is availed. The case was remanded to the Commissioner for verifying the fulfillment of Condition Nos. 9 and 10. The Tribunal's interpretation ensures non-discriminatory application of the notification, aligning with legal principles and past judicial precedents.

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