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2014 (12) TMI 949 - CGOVT - Central ExciseRebate claims - Notification No. 19/2004-CE(NT) dated 6.9.2004 does not specify automobile cess as duty for the purpose of granting rebate - non-fulfillment, of condition 2(b) of Notification No. 19/2004-CE(NT) dated 6.9.2004 - Held that - Under sub-section (3) it was further envisaged that the pro visions of the Central Excise Act, 1944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Rules. Surcharge is collected as part of levy under three different enactments goes to show that scheme of levy of Education cess was by way or collecting special funds for the purpose of Government project towards providing and financing universalised quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied & collected. Section 91 also stipulates that these shall be levied and collected as surcharge, a cess to be called Education Cess. In respect of these taxes the surcharge collected along with tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by respective enactments under which Education cess in the form of surcharge is levied and collected. Government notes that the automobile cess is not levied and collected as surcharge and also there are no parallel provisions with reference to automobile cess as contained in Section 91, 92 & 93 of Finance Act 2004 Moreover the automobile cess is levied and collected in terms of Notification No. SO. 247(E) dated 22.3.90 and not under Central Excise Act 1944. In view of these circumstances the ratio of said Rajasthan High Court judgement 2007 (7) TMI 308 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR cannot be made applicable to, the present case, as the same is case specific relating to rebate of education cess. Therefore the rebate of Automobile Cess levied and collected under Automobile Cess Rules 1984 and SO No.247(E) dated 22.3.1990 is not admissible under Rule 18 of Central Excise Rules 2002 read with Notification No. 19/04-CE (NT) dated 69.04. As regards, the issue of violation of provision of contention No.2(b) of Notification No.19/04-CE(NT) Government notes that applicant has claimed to have exported the goods within six months of their clearance from Hosur Unit for export under ARE-1. The applicant further stated that they have two units in Mysore and Hosur, that they clear the goods from the Mysore unit to the Hosur unit after the payment of excise duties; that at the time of clearance from Mysore factory, they are not acquainted as to which goods would be exported or sold to the local market by the Hosur Unit; that at the time of clearance from Mysore unit, there is no ARE-1 prepared but the goods are merely transferred to the Hosur unit and that ARE-Is are prepared when the goods are exported from Hosur unit. The applicant has further relied upon provisions contained in part-I of Chapter 8 of Supplementary Instruction, 2005 which relate to Notification No.19/2004-CE (NT) dated 6.9.2004. Since the goods are exported from Hosur unit on ARE-1/Invoice, the said goods are cleared for export on the date of preparation of ARE-1 at Hosur unit. Since the goods are exported within six months of their clearance from Hosur unit (date of ARE-1/invoices), the allegation of violation of condition 2(b) of the Notification No.19/2004-CE(NT) does not survive and hence, rebate claims cannot be disallowed on this count. - Decided in favour of assessee.
Issues Involved:
1. Rejection of rebate claim for automobile cess. 2. Compliance with condition 2(b) of Notification No. 19/2004-CE(NT) regarding the six-month export period. Detailed Analysis: 1. Rejection of Rebate Claim for Automobile Cess: - Background: The applicant, a manufacturer of motorcycles, exported vehicles and claimed rebates under Rule 18 of the Central Excise Rules, 2002. The rebate claims were partially disallowed, specifically for the automobile cess, as Notification No. 19/2004-CE(NT) did not specify automobile cess as a duty eligible for rebate. - Applicant's Argument: The applicant argued that the automobile cess, along with other cesses, should be considered as duties of excise under the Central Excise Act, 1944, and thus eligible for rebate. They cited Rule 3 of the Automobile Cess Rules, 1984, which states that provisions of the Central Excise Act apply to the levy and collection of cess. - Government's Observation: The government noted that the identical issue had been decided in a previous order (GOI Order No. 401-404/13-Cx). The relevant statutes and notifications did not include automobile cess in the list of duties eligible for rebate. The Rajasthan High Court's judgment in the case of Banswara Syntex Ltd. was considered but found not applicable because the automobile cess is not levied as a surcharge and lacks parallel provisions to those of education cess under Sections 91, 92, and 93 of the Finance Act, 2004. - Conclusion: The rebate of automobile cess was denied as it is not specified under the relevant notification and does not meet the criteria for rebate under Rule 18 of the Central Excise Rules, 2002. 2. Compliance with Condition 2(b) of Notification No. 19/2004-CE(NT): - Background: The rebate claims were also denied on the grounds that the goods were not exported within six months from the date of clearance from the factory, as required by condition 2(b) of Notification No. 19/2004-CE(NT). - Applicant's Argument: The applicant contended that the six-month period should be calculated from the date of clearance for export from their Hosur unit, where the ARE-1 forms were prepared, not from the date of transfer from the Mysore unit to the Hosur unit. They argued that the goods were transferred to the Hosur unit on payment of duty and that the ARE-1 forms were prepared only when the goods were exported from Hosur. - Government's Observation: The government agreed with the applicant, noting that the goods were not initially cleared for export but were stock-transferred to the Hosur unit. The relevant date for calculating the six-month period is the date of preparation of the ARE-1 forms at the Hosur unit. Since the goods were exported within six months of this date, the condition 2(b) was met. - Conclusion: The rebate claims could not be disallowed based on the alleged violation of condition 2(b), as the exports were within the stipulated period from the date of clearance for export from the Hosur unit. Final Decision: - The government upheld the rejection of the rebate claim for the automobile cess but allowed the rebate claims concerning the compliance with the six-month export period from the Hosur unit. The revision applications were disposed of accordingly.
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