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2015 (1) TMI 720 - CGOVT - Central ExciseRebate claim - Export of Gutkha prior to issue of amendment dated 02-07-2011 in the Plastic waste (Management and Handling) Rules 2011 issued by Ministry of Environment and Forest and CBEC circular dated 30-08-2011 - Held that - export takes place when goods leave India to a place outside India. So the date of export in case of goods exported by sea will be date on which ship leaves India. The Commissioner (Appeals) has erred in considering the date of removal of goods from factory as date of export and granted rebate on wrong presumption. Export takes place when the ship leaves or sailed out of India. In this case out of 27 cases in 23 cases goods were exported after 01-07-2011 as is evident from table in para 2 above. As discussed above the export of gutkha/Pan masala etc. in plastic sachet/pouches was prohibited w.e.f 02-07-2011 and rebate of duty paid on such goods is not admissible under rule 18 of Central Excise Rules 2002 read with Notification No. 19/2004-CE (NT) Notification No. 32/08-CE (NT) dt. 28-08-2008 and Rule 14 of Pan Masala Packing Machines Rules 2008. Following decision of assessee s own previous case 2015 (1) TMI 666 - GOVERMENT OF INDIA - the rebate of duty paid on goods exported prior to 02-07-2011 is admissible - Decided partly in favour of Revenue.
Issues Involved:
1. Applicability of Plastic Waste (Management and Handling) Rules, 2011. 2. Date of export determination for rebate claims. 3. Retrospective application of CBEC circular dated 30-08-2011. 4. Admissibility of rebate claims under Central Excise Rules and relevant notifications. Detailed Analysis: 1. Applicability of Plastic Waste (Management and Handling) Rules, 2011: The primary issue revolves around whether the export of Gutkha in plastic sachets contravenes the Plastic Waste (Management and Handling) Rules, 2011. The Assistant Commissioner of Central Excise initially rejected the rebate claims on the grounds that the condition 2(g) of Notification No. 19/04-CE (NT) dated 06-09-2004 was violated. The Commissioner (Appeals) allowed the appeal, stating that the Gutkha was exported before the amendment dated 02-07-2011, which cannot be applied retrospectively. The Government, however, noted that the export of Gutkha in plastic sachets after 02-07-2011 contravenes the amended rules and is not eligible for exemption under rule 2 after the amendment. 2. Date of Export Determination for Rebate Claims: The determination of the export date is crucial for rebate claims. The department argued that the date of ARE-1 cannot be taken as the date of export; instead, the export date is when the goods leave the port of export. The Government agreed, stating that export takes place when the ship leaves India, not when goods are removed from the factory. Consequently, goods exported after 01-07-2011 are not eligible for the rebate as they contravene the amended Plastic Waste Rules. 3. Retrospective Application of CBEC Circular Dated 30-08-2011: The department contended that the CBEC circular dated 30-08-2011 should be applied retrospectively to finalize all past cases. The Commissioner (Appeals) held that the circular cannot be applied retrospectively unless specified. The Government upheld this view, referencing the GOI Revision Order No. 1662-1714/12-Cx dated 06-12-2012, which stated that the CBEC circular cannot be made effective retrospectively. 4. Admissibility of Rebate Claims Under Central Excise Rules and Relevant Notifications: The rebate claims were filed under rule 18 of Central Excise Rules, read with Notification No. 32/2008-CE (NT) and Rule 14 of Pan Masala Packing Machines Rules, 2008. The Government observed that rebate claims are admissible only if the goods are exported in compliance with the relevant rules and notifications. Goods exported after 01-07-2011 in plastic sachets are not eligible for rebate due to the contravention of the Plastic Waste Rules. However, goods exported before 02-07-2011 are eligible for rebate, as per the GOI Revision Order No. 1662-1714/2012-Cx. Conclusion: The Government partially allowed the revision application. The rebate claims for goods exported before 02-07-2011 are admissible, while those exported after 01-07-2011 are not. The impugned Order-in-Appeal is modified to reflect this decision.
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