2018 (10) TMI 1813 - CGOVT - Central Excise

Rebate claim - denial on the ground that the applicant had exported free samples having no market value - Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002 - HELD THAT - It is observed there is no dispute that the rebate of duty was claimed by the applicant in respect of the inputs used in the export of free samples for the Pharmaceutical products for which the governing Notification No. is 21/2004-C.E. (N.T.), dated 6-9-2004. Whereas the rebate claims have been dealt with and rejected by the lower authorities with reference to Condition 2(e) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 even when it is not applicable for the purpose of examining the admissibility of rebate of duty in respect of inputs. By virtue of Para 5 of Notification No. 21/2004-C.E. (N.T.) the procedures specified in Notification No. 19/2004-C.E. (N.T.) are certainly made applicable to Notification No. 21/2004-C.E. (N.T.), but it is evident from this para itself that the conditions and limitations specified under Para 2 of Notification No. 19/2004-C.E. (N.T.) are not relevant in the context of Notification No. 21/2004-C.E. (N.T.) as the said Para 5 is conspicuously silent with regard to following of conditions of Notification No. 19/2004-C.E. (N.T.) which are specified at Sl. No. (a) to (h) of Para 2 and procedures are prescribed separately in Para 3. While Para 5 of Notification No. 21/2004-C.E. (N.T.) expressly provides for following of procedure laid down in Notification No. 19/2004-C.E. (N.T.), it does not have any reference to the conditions and limitations stipulated in Para 2 of Notification No. 19/2004-C.E. (N.T.) from which it is explicit that the conditions stipulated in Para 2 of Notification No. 19/2004-C.E. (N.T.) including the condition in Para 2(e) as per which the Indian market price of the excisable goods at the time of export should not be less than the amount of rebate of duty claimed is not applicable under Notification No. 21/2004-C.E. (N.T.) and accordingly its application by the lower authorities for rejection of the rebate claims of the applicant is completely erroneous. The Government of India s Order No. 386/2010-CX., dated 23-3-2010 in the case of M/s. Ranbaxy Laboratory Ltd., 2010 (3) TMI 970 - GOVERNMENT OF INDIA is also not found relevant for the present proceedings as in the said case the issue was regarding admissibility of rebate of duty in respect of the exported goods governed by Notification No. 19/2004-C.E. (N.T.) and it was not in respect of inputs to be determined under Notification No. 21/2004-C.E. (N.T.) as is in the present case - Therefore, the Assistant Commissioner as well as the Commissioner (Appeals) have wrongly placed reliance on the above order to confuse the whole matter and deny the rebate of duty to the applicant on erroneous premise. The Indian market value of the exported goods is only relevant for Notification No. 19/2004-C.E. (N.T.) and not the foreign remittance. Since Indian market price of the exported free samples was undisputedly ₹ 5,98,226/- in this case, the condition specified in Para 2(e) of Notification No. 19/2004-C.E.( N.T.) is not attracted in this case. Accordingly, there is no violation of Para 1.5 of Part V of Chapter 8 of C.B.E. C. s Central Excise Manual in this case - Moreover, there is no legal basis for this condition in the manual as no such condition is stipulated in Notification No. 21/2004-C.E. (N.T.) or Rule 18 of Central Excise Rules. Thus, the Government is convinced that rebate of duty under Notification No. 21/2004-C.E. (N.T.) has been erroneously refused to the applicant by the lower authorities and, therefore, the Order-in-Appeal deserves to be set aside - revision allowed.

Summary

Issues:
Rejection of rebate claims for exported free samples under Notification No. 21/2004-C.E. (N.T.) by lower authorities based on incorrect application of Notification No. 19/2004-C.E. (N.T.) conditions.

Analysis:
The revision applications were filed against the rejection of rebate claims for exported free samples by M/s. Torrent Pharmaceuticals Ltd. The rejection was based on the ground that the exported free samples had no market value, as determined by the jurisdictional Assistant Commissioner. The appeals filed by the applicant before the Commissioner (Appeals) were also dismissed, upholding the decision of the adjudicating authority.

The revision applications argued that the market value of the exported free samples exceeded the rebate claim amount, Central Excise duty was paid on the value, and Notification No. 21/2004-C.E. (N.T.) did not have a condition similar to that of Notification No. 19/2004-C.E. (N.T.) regarding market price not being less than the rebate amount.

During the personal hearing, the applicant's representative reiterated the grounds of revision and cited relevant case laws. The Government observed that the lower authorities wrongly applied Condition 2(e) of Notification No. 19/2004-C.E. (N.T.) to reject the rebate claims under Notification No. 21/2004-C.E. (N.T.). The Government clarified that the conditions of Notification No. 19/2004-C.E. (N.T.) were not applicable to Notification No. 21/2004-C.E. (N.T.), and the rejection was erroneous.

The Government highlighted that the market value of the exported goods was relevant only under Notification No. 19/2004-C.E. (N.T.), not for foreign remittance. The conditions specified in Notification No. 19/2004-C.E. (N.T.) were not applicable to the case at hand. The Government concluded that the rebate of duty under Notification No. 21/2004-C.E. (N.T.) was wrongly refused to the applicant, and the Order-in-Appeal was set aside, allowing the revision applications.