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2016 (8) TMI 12 - HC - Central ExciseClaim of rebate on export of cigarettes - Held that - the rebate in case of export of goods secured under area based exemption notification was denied by amending Notification No. 19/2004- CE, for the first time, vide Notification No. 37/2007-CE (NT) dated 17th September 2007. This amendment was prospective. However there was no corresponding amendment in Notification No. 41/1994-CE (NT) dated 12th September 1994 in terms of which the rebate was being claimed by the Petitioner. The Gujarat High Court has in the above decision held that the above amendment to Notification No. 19/2004-CE (NT) to be only prospective. As a result the exports already made prior to 17th September 2007 could not be denied rebate. Even on this basis the rejection of the Petitioner s refund application does not appear to be justified. Rebate allowed - Decided in favor of assessee.
Issues:
Challenge to Order-in-Appeal dated 29th November 2001 dismissing rebate claim on exported cigarettes; Challenge to subsequent order dated 27th August 2002 dismissing revision petition; Retrospective withdrawal of benefit under Notification Nos. 32/99-CE and 33/99-CE; Interpretation of Rule 12(1)(a) of the Central Excise Rules, 1944; Denial of rebate on goods exported under area-based exemption notification; Prospective vs. retrospective amendments in Notification No. 19/2004-CE (NT) and Notification No. 41/1994-CE (NT). Analysis: The petitioner, Indosin Ltd., challenged the Order-in-Appeal dated 29th November 2001, which dismissed their rebate claim on exported cigarettes. The case involved a show cause notice issued to reject the rebate claim on cigarettes exported by a shipping bill dated 11th December 2000. The subsequent order of the Joint Secretary dated 27th August 2002, dismissing the revision petition, was also challenged in the petition. The petitioner purchased cigarettes from M/s North East Tobacco Company Limited, which benefited from area-based exemption from central excise duty. The petitioner filed a refund claim invoking Rule 12(1)(a) of the Central Excise Rules, 1944, for exporting cigarettes to the UAE. However, the Department contended that as the goods were fully exempted from duty, the refund claim of ?15,12,000 was liable to be rejected. The rejection of the refund claim by the Deputy Commissioner, Central Excise, on 13th August 2001, was upheld by the Commissioner (Appeals) and the Government of India. The principal ground for rejection was that no duty was actually paid by the manufacturer, NETCL, which supplied the cigarettes to the petitioner. The petitioner argued that due to the retrospective withdrawal of benefits under Notification Nos. 32/99-CE and 33/99-CE, the refund should not be denied. The Court noted that the area-based refund for manufacturers in the North East, including NETCL, was no longer available due to the Finance Act, 2003. With recovery proceedings initiated against NETCL, the petitioner should not be denied the refund under Rule 12(1)(a) of the CE Rules. The Court emphasized that the basis for rejecting the refund claim no longer existed, warranting the set aside of previous orders. Additionally, the Court referenced a Gujarat High Court decision regarding the denial of rebate in cases of export secured under area-based exemption notification. The Court highlighted that amendments were prospective and did not apply to exports made before a certain date, supporting the petitioner's claim for rebate. Consequently, the Court allowed the petition, setting aside the orders rejecting the refund application, and directed the grant of the refund with interest within eight weeks. No costs were awarded in the circumstances.
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