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TMI Blog2013 (7) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E. on the transaction value of exported goods, is to be treated as voluntary deposit made by applicant with the Government. In such cases where duty is paid in excess of duty actually payable as held by Hon’ble Apex Court in the case discussed in M/s. Nahar Industrial Enterprises Ltd. v. UOI [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT], wherein Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable. Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate - assessee had paid duty on export goods at tariff rate of 16% ignoring the exemption Notification No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 prescribing duty @ 4% and nil respectively. In this case, original authority had allowed rebate of duty paid at effective rate of 4% and allowed recredit of balance amount in the Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95/618-619/12-RA 139-140/12/2012(Ahd.-II)CE/MM/Commr.(A)/ Ahd. of CCE(A)Ahd.-I 12-4-2012 2. Briefly stated the facts of these cases are that applicant M/s. Cadila Health Care Ltd., Ahmedabad, falling in jurisdiction of Central Excise, Division-IV, Ahmedabad-II having Central Excise Registration No. AACC653GXM004 exported goods namely pharmaceuticals/medicaments falling under CETH 3004 on payment of duty and filed rebate claims in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. During scrutiny of rebate claims it was observed that assessee had paid duty on exported goods in terms of Notification No. 2/2008-C.E., dated 1-3-2008 as amended, @ 10% adv. through their Cenvat credit account. Prior to Budget 2010, effective rate of duty on such goods was 4% in terms of (entry No. 62-C) Notification No. 4/2006-C.E., dated 1-3-2006 as amended, which was still effective at the time of clearance of said goods. By virtue of Notification No. 2/2008-C.E., dated 1-3-2008 (entry No. 21) as amended by Notification No. 6/2010-C.E., dated 27-2-2010, duty has been increased from 8% to 10% on said goods. Thereafter applicant paid duty @ 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fications, both being approved by the Indian Parliament, for the same Medicaments of the Heading 3004, of the First Schedule to the said Tariff Act. 4.3 By now it is settled question of law that when the Legislature has enacted two different Tariff Notifications, in respect of same finished excisable goods, it is upto the Central Excise assessee, to choose one which is most beneficial to him, for a given consignment of the finished excisable goods. This being the position, as out of the two notifications namely, (1) Notification No. 4/2006-C.E., dated 1-3-2006 and (2) 2/2008-C.E., dated 1-3-2008, the applicants, have selected Notification 2/2008-C.E., dated 12-3-2008 and paid Central Excise Duty accordingly, on the export goods and their selection cannot be denied by the Excise Authorities. 4.4 The original authority, has without appreciating the legality of the matter, wrongly issued directions, for re-credit of Central Excise Duty, at the rate of 6.18% credit in the Cenvat Credit Account of the applicants, in lieu of issuance of a cheque of an equal amount and therefore, his order-in-original, was itself, was bad in law. Orders-in-appeal is also equally bad-in-law. 4.5 Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. CCE, Ahmedabad - 2010 (255) E.L.T. 124 Tri.-Ahmd.) • CCE, Baroda v. India Petro Chemicals Corporation Ltd. - 1997 (92) E.L.T. 13 (S.C.) • HCL Ltd. v. CCE, New Delhi - 2001 (130) E.L.T. 405 (S.C.) • Share Medical Care v. UOI - 2007 (209) E.L.T. 321 (S.C.) • CCE, Bangalore v. Maini Precision Products Pvt. Ltd. - 2010-TIOL-1663 Tri. (Bang.) = 2010 (252) E.L.T. 409 (Tri.-Bang.) • HYVA (India) Pvt. Ltd. v. CCE, Belapur - 2010-TIOL-1410-CESTAT Mum. 5. Personal hearing was scheduled in this case on 8/9-8-2012. S/Shri J.C. Patel, Advocate, Mehul Shah, Vice-President (Taxation) and Gopal Chosla, General Manager (Excise) appeared for personal hearing on 9-8-2012 on behalf of applicants who reiterated grounds of revision application. Nobody attended personal hearing from respondent side. 6. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 7. Government notes that some of the revision applications are filed by the applicants with delay of one day to seventeen days. They have also filed the applications for condonation of the delay and submitted that the said delay has occurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2010 in respect of all clearances made both for home consumption as well as for exports by paying duty @ 4% only. All the rebate claims were being sanctioned accordingly. From March 2010 onwards applicants started paying duty @ 10% in terms of Notification No. 2/2008-C.E. as amended on export goods and claimed rebates of duty paid at higher rate. Applicants apparently opted to pay duty on export clearances at higher rate so as to encash the accumulated Cenvat credit through the said rebate claims. 9.1 Government notes that for goods namely medicaments of Chapter 30, Notification No. 2/2008-C.E., dated 28-2-2008 was issued for reducing the General Tariff rate from 16% to 14% and thereafter said rate was amended from 14% to 10% vide Notification No. 58/2008-C.E., dated 7-12-2008, from 10% to 8% vide Notification No. 4/2009-C.E., dated 24-2-2009 and again from 8% to 10% vide Notification No. 6/2010-C.E., dated 27-2-2010. At the same time the Notification No. 4/2006-C.E., dated 1-3-2006 providing for effective rate of duty @ 4% was amended vide Notification No. 4/2008-C.E., dated 1-3-2008 by inserting Sr. No. 62A, 62B, 62C, 62D & 62E for CETH 3001, 3003, 3004, 3005 & 3006 (except 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate beneficial to assessee may be extended. In the instant case, the applicant has availed both the rates of duty, which is not allowed in TRU letter. Here basically the issue involved is whether rebates of duty paid at tariff rate or effective rate is to be allowed and not exactly regarding applicability of two notifications for payment of duty. 9.3 Government notes that lower authorities have relied upon para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual on Supplementary Instructions which is extracted as under :- "4. Sealing of goods and examination at place of dispatch 4.1 The exporter is required to prepare five copies of application in the Form ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N.T.), dated 6-9-2004 (See Part 7). The goods shall be assessed to duty in the same manner as the goods for home consumption. The classification and rate of duty should be in terms of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. The value shall be the "transaction value" and should conform to Section 4 or Section 4A, as the case may be, of the Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Notification No. 4/2006-C.E. The abovesaid C.B.E. & C. Instructions state that export goods are to be assessed in the same manner as the goods for home consumption. So, applicant has to assess all goods whether cleared for export or home consumption in a same manner. He cannot assess export goods as higher rate of duty @ 10% and goods cleared for home consumption at lower rate of duty @ 4%. He has to choose any one notification and assess all clearance of goods in the same manner if there are two effective rates of duty as per two notifications. In this case, the situation is different since Notification No. 2/2008-C.E. prescribed duty at General Tariff rate of 10% whereas effective rate of duty is 4% vide Notification No. 4/2006-CE. Even the Joint Secretary (TRU) C.B.E. & C. D.O. Letter dated 29-2-2008 stipulated that rate of duty beneficial to assessee have to be extended. The said letter has not allowed payment of duty under both notifications. Assessee could have opted for one notification for all clearance even if it is considered as case of applicability of two notifications. 9.5 Government notes that departmental authorities are bound by C.B.E. & C. Circulars/Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference between conclusion of two cases", and in para 11 further inferred as follows : "11. The following words of Lord Denning in the matter of applying precedents have become locus classicus :- "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect --" Therefore, there cannot be any strict statutory relied upon citation which can be taken as guiding precedents because each one of above citation have different background of factual merits pertaining to manufacturers manufacturing goods of different sub-headings following different set of Notifications, choosing different beneficial schemes and changing thereof in between a given financial year thereby leading to arise of different question of law. 9.7 Government further notes that following case laws lend support to the view that rebate is to be allowed at the duty paid at effective rate prescribed in the notification and the excess paid amount as duty from the Cenvat credit is to be refunded in the Cenvat credit account. 9.7.1 Hon'ble Supreme Court has held in the case of CCE v. Parle Exports - 1988 (38) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue No. 1 : Can a manufacturer of Textiles or Textile articles avail full exemption under No. 30/2004-C.E., dated 9-7-2004 as well as clear similar or dissimilar goods on payment of duty under Notification No. 29/2004-C.E., dated 9-7-2004 simultaneously? Clarification : Notification No. 29/2004-C.E. (prescribing optional duty at the rates of 4% for pure cotton goods and 8% for other goods) and Notification No. 30/2004-C.E. (prescribing full exemption) are independent notifications and there is no restriction on availing both simultaneously. However, the manufacturer should maintain separate books of account for goods availing Notification No. 29/2004-C.E. and for goods availing Notification No. 30/2004-C.E." In this case, both the Notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount paid as duty has to allowed in re-credited to the Cenvat credit account as the said amount cannot be retained by Government without any authority of law. 12. Applicant has also contested the decision of lower authorities regarding allowing rebate of duty payable on lower value appearing in one of the two statutory documents namely ARE-1 and Shipping Bill. In the said cases, FOB value declared in Shipping Bill is lower than the value declared in ARE-1 Form. Applicant has not given any reason for difference in these two values. Therefore, adjudicating authority considered the FOB value as declared in Shipping Bill as transaction value of goods and accordingly held that duty was payable on transaction value which is FOB value in this case. Government observes that for proper understanding and consideration issue involved the relevant statutory provisions for determination of value of excisable goods are required to be perused and the same are extracted below :- 12.1 As per basic applicable Section 4(1)(a) of Central Excise Act, 1944 where duty of excise is chargeable on any excisable goods with reference to their value, then on each removal of said goods such value shall, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of word "any other place" read with definition of "Sale", cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it cannot be beyond the port of loading of the export goods. It can be either factory, warehouse or port of export and expenses of freight/insurance incurred upto place of removal form part of assessable value. Under such circumstances, the place of removal is the port of export if sale takes place at the port of export. The GOI Order No. 271/05, dated 25-7-2005 in the case of CCE, Nagpur v. M/s. Sri Bhagirth Textiles Ltd. reported as 2006 (202) E.L.T. 147 (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons is to be in order. He does not have the mandate to sanction claim of obviously excess paid duty and then initiate proceeding for recovery of the erroneously paid rebate claim. Therefore, the circular of 2000 as relied upon by applicant cannot supersede the provisions of Notification No. 19/2004-C.E. (N.T.). So, adjudicating authority has rightly 'restricted and sanctioned the part rebate claim upto duty paid @ 4% on the FOB value which was determined as transaction value of goods in this case in terms of Section 4 of Central Excise Act, 1944 and also rightly held that any amount paid in excess of duty liability on one's own volition cannot be treated as duty and it has to be treated a voluntary deposit with the Government which is required to be returned to the applicants in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon'ble High Court of Haryana at Chandigarh vide order dated 1-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & H) has decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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