9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (12) TMI 1127 - CGOVT - Central ExciseDenial of rebate claim - Rule 18 of the Central Excise Rules 2002 read with Notification No. 19/2004 CE( NT) dated 06.09.2004 - effective rate of duty - Applicable notifiction - Notification No 2/08-CE dated 01.03 2008 or Notification No. 4/2006 CE dated 01.03.2006 - Held that - instructions issued by CBEC regarding assessment of export goods are quite relevant to decide the issue involved in these cases - plain reading reveals that the export goods shall be assessed to duty in the same manner as the good cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in schedule of Central Excise Tariff Act 1985 read with any exemption notification and /or Central Excise Rules 2002. The CBEC instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. Notification No. 2/08-CE dated .1.03.08 as amended prescribed General Tariff rate of duty @10% which was in fact brought down from 16% to 14% and then to 8% and finally to 10% by different amending notifications. The notification No. 4/06-CE dated 1.03.06 as amended prescribed effective rate of duty from initial rate of 0% to 8% 8% to 4% and finally to 5% by different amending notifications. As such it is not correct to say that it is a case of applicability of two notifications only and assessee is at liberty to choose anyone notification which is beneficial to. him. In this case notification No. 2/08-CE as amended provided for General tariff rate of duty and Notification No. 4/06-CE as amended provided for effective rate of duty and they have to be strictly construed.as such. when two notifications co-exit simultaneously the assessee has the option to choose anyone of the notifications beneficial to him. Hon ble Apex Court 2001 (3) TMI 971 - SUPREME COURT OF INDIA has categorically held that in such a situation assessee has option to choose anyone notification. Apex court has not stated that assessee can avail both the notifications simultaneously. In the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notifications. There is no merit in the contentions of applicants that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @4% or 5% in terms of exemption notification No.4/06-CE dated 1.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No.4/06-CE dated 1.03.06 as amended as applicable on the relevant on the transaction value of exported goods determined under section 4 of Central Excise Act 1944. - the amount paid in. excess of duty payable on one s own volition cannot be retained by Government and it has to be returned to manufacturer applicant in the manner in which it was paid. Accordingly such excess paid amount/duty which is required to be returned to the applicants has already been allowed by the original authority - Decided against assessee.
Issues Involved:
1. Eligibility for rebate claims under different Central Excise Notifications. 2. Applicability of effective duty rates for exported goods. 3. Authority of the department to direct recredit of Central Excise Duty. 4. Interpretation of CBEC instructions and relevant case laws. 5. Mode of refund for excess duty paid. Detailed Analysis: 1. Eligibility for Rebate Claims Under Different Central Excise Notifications: The applicants, a manufacturer-exporter, filed rebate claims under Rule 18 of the Central Excise Rules, 2002, read with Notification No. 19/2004-CE(NT) dated 06.09.2004. They paid duty on exported goods at 10% under Notification No. 2/08-CE dated 01.03.2008 but cleared goods for home consumption at 4% and 5% under Notification No. 4/2006-CE as amended. The original authority sanctioned rebate claims to the extent of duty payable at 4%/5%, which was upheld by the Commissioner (Appeals). 2. Applicability of Effective Duty Rates for Exported Goods: The applicants argued that both Notification No. 4/2006-CE and Notification No. 2/2008-CE have parliamentary approval, allowing them to choose the more beneficial notification. They contended that they should be eligible for a rebate of duty paid at 10% as per Notification No. 2/08-CE. However, the government noted that Notification No. 2/08-CE was issued to reduce the general rate of Central Excise duty, while Notification No. 4/06-CE provided an effective rate of duty for specific goods. The CBEC instructions stipulate that export goods should be assessed in the same manner as goods cleared for home consumption, implying that the effective rate of duty should apply. 3. Authority of the Department to Direct Recredit of Central Excise Duty: The applicants challenged the original authority's direction to recredit the excess duty paid into their CENVAT Credit Account instead of issuing a cheque. They cited Chapter 9 of the Supplementary Instructions by the Central Board of Excise & Customs, which states that refunds or rebates should be given by cheque. The government, however, upheld the original authority's decision, referencing the Hon'ble High Court of Punjab & Haryana's ruling in M/s. Mahar Industrial Enterprises Ltd. Vs. UOI, which supported refund by way of credit for excess duty paid. 4. Interpretation of CBEC Instructions and Relevant Case Laws: The applicants relied on several case laws to argue their right to choose the beneficial notification. The government noted that the cited cases pertained to situations where two notifications co-existed, allowing the assessee to choose the more beneficial one. However, in this case, the issue was about the rebate of duty paid at the general tariff rate versus the effective rate. The government emphasized that the CBEC instructions mandate assessing export goods at the effective rate applicable for home consumption. 5. Mode of Refund for Excess Duty Paid: The government observed that any excess duty paid should be returned in the manner it was paid, as per the Hon'ble High Court of Punjab & Haryana's ruling. The original authority's decision to recredit the excess duty into the applicant's CENVAT Credit Account was found to be appropriate and in line with legal precedents. Conclusion: The government rejected the revision applications, upholding the orders of the Commissioner (Appeals). The rebate was deemed admissible only to the extent of duty paid at the effective rate of 4% or 5% as per Notification No. 4/06-CE dated 01.03.2006, as amended. The excess duty paid was to be recredited into the applicant's CENVAT Credit Account, consistent with the CBEC instructions and relevant legal rulings.
|
