2016 (9) TMI 528 - HC - Central Excise

Rebate claim - Rule 18 of the Central Excise Rules read with notification no. 32/2008-CE (N.T.) dated 28.08.2008, between 07.06.2011 and 1.07.2011 - articles exported prior to coming into force of the Plastic Waste Management and Handling Rules, 2011 which was on 02.07.2011 - Held that - the view taken by the Central Government in P.R.Chemicals 2015 (1) TMI 666 - GOVERNMENT OF INDIA is the correct one. Instead in this case, the Central Government appears to have relied entirely on the textual meaning of export as the point in time when goods actually crosses the international border. Section 51 of the Customs Act, in our opinion, completely answers the issue at hand. Having regard furthermore, in part the Government was of the view that the notification was not retrospective and the consignment did qualify for rebate. In the present case as well, the petitioners were entitled to relief. It is therefore held that the impugned order cannot be sustained. The order of the appellate authority is restored. - Writ petition allowed

Summary

Issues:
Challenge to rejection of rebate claim under Rule 18 of Central Excise Rules for exported goods due to plastic waste management rules.

Analysis:
1. The writ petition contested the Central Government's order rejecting a rebate claim for exported goods under Rule 18 of Central Excise Rules. The petitioner, a manufacturer of pan masala/gutkha, had filed rebate claims for 27 consignments between 07.06.2011 and 01.07.2011. The Assistant Commissioner rejected the claims, which were later upheld by the appellate authority. However, the revisional authority allowed relief for four clearances that qualified for rebate since the goods had left India before the Plastic Waste Management and Handling Rules, 2011 came into force on 02.07.2011.

2. The petitioner argued that the ban on plastic sachets introduced on 02.07.2011 should not affect rebate claims for exports between 07.06.2011 and 01.07.2011. They cited a revisional order by the Central Government in a similar case. The Central Government's decision in P.R. Chemicals' case was referred to, emphasizing that the ban on export due to plastic packaging should not apply retrospectively.

3. The respondent contended that the rebate claim contravened Notification No. 19/2004-C.E. (N.T.) as it prohibited the rebate on excisable goods exported in plastic sachets. The Commissioner (Appeals) and the revisional authority's decisions were challenged, arguing that subsequent circulars and trade notices should not impact exports made when the relevant laws were in force.

4. The Court noted that the goods were cleared before the plastic packaging ban took effect on 02.07.2011. The Central Government's stance in P.R. Chemicals' case was considered correct, emphasizing that the notification was not retrospective. The interpretation of "export" was crucial, with reference to the Customs Act's Section 51.

5. Referring to the Supreme Court's decision in Union of India vs. Asian Food Industries, the Court highlighted the Customs Act's provisions regarding different stages and points in time for customs and exports. The Court emphasized that the textual interpretation of "export" should consider when the goods cross the international border, as per Section 51 of the Customs Act.

6. Ultimately, the Court upheld the petitioner's claim, stating that the rebate was justified for consignments cleared before the plastic waste management rules came into effect. The impugned order was deemed unsustainable, and the appellate authority's decision was restored. The writ petition was allowed without costs, directing the respondent to process the rebate applications promptly and issue appropriate refund orders within four months.