9911796707
TMI Blog2014 (12) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... that certain amount of rebate claimed, for non-fulfillment, of condition 2(b) of Notification No. 19/2004-CE(NT) dated 6.9.2004. 3. Being aggrieved by the said orders-in-original, applicant filed appeals before commissioner (Appeal) who rejected the same. 4. Being, aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 The applicants submit that the impugned order rejecting the rebate claim by the Commissioner of Central Excise (Appeals) Mangalore has been passed without fully appreciating the factual and the legal position in the proper perspective and the said order deserves to be set aside on this score itself. 4.2 The vehicles/goods were cleared by the applicants to their Hosur plant on payment of duty; that the Hosur plant of the applicants had not availed Cenvat credit against the said consignments which were removed to the Hosur Plant; that the applicants have exported the goods on payment of Central Excise duty under claim of rebate; that the Hosur plant had issued the disclaimer certificate to enable the applicants to claim rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above Contention; the applicants also submit that the condition requiring export of goods within six months from the date of clearance from the factory of manufacture is only procedural in nature and the department cannot deny the rebate on such procedural lapse when the act of export is not disputed. In this regard, the applicants rely on the order-in-original No.19/2007 (Rebate) dated 10.04.2007/11.04.2007 passed by Assistant Commissioner in the appellant's own case for the month of September 2006 wherein, he has accepted the submission of the applicants and has also followed the order-in-appeal No.132/2007-CE dated 16.03.2007/20.03.2007 passed by the CCE(A) wherein, the appellate authority had allowed the appeals of the applicants for the previous period whereby it was held that the requirement of export within six months was merely technical and procedural and therefore the rebate should be allowed. 4.4 Applicants further submit that the Automobile Cess is levied under Section 9 of the Industries-(Development and Regulation) Act, 1951 read with Rule 3 of the Automobile Cess Rules, 1984. Education Cess on Automobile Cess, Secondary & Higher Education Cess on Automobile Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f has vide their circular dated 20.03.2007 stated that in cases where goods are exported under bond, the applicable cess would be liable to be paid unless it is exempted by a notification. In the instant case, it is submitted that the cess which is a duty of excise is exempted vide the Notification dated 06.09.2004. Further, as submitted above the CBEC Circular dated 08.10.2007 itself clarified that the instructions dated 22.03.1990 issued by the Department of Industrial Development is a Notification and therefore it would be covered by word 'notification' used in Board's letter dated 20.03.07. Thus, the Board clarified that the automobile cess would be eligible as rebate in view of the instructions issued by the Department of Industrial Development. Without prejudice to the above, the applicants submit that in the light of the clarification issued by the Department itself, automobile cess is eligible as rebate unless the same is exempted by a notification. Thus having clarified that automobile cess is exempt as per the instruction, that was further clarified to be as a Notification, the collection of the Cess by the department is prima facie illegal and without authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstanding of issue: 'Explanation I-"duty" for the purpose of this notification means duties of excise collected under the following enactments, namely: (a) the Central Excise Act; 1944 (1 of 1944); (b) the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978); (d) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by section 169 of the Finance Act, 2003 (32 of 2003) and further amended by section 3 of the Finance Act, 2004 (13 of 2004); (e) special excise duty collected under a Finance Act; (t) additional duty of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under clause 81 read with clause 83 of the Finance (No.2) Bill, 2004. (h) the additional duty of excise leviable under clause 85 of the Finance Bill, 2005 the clause which has, by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act 1931. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Cess, to fulfill the commitment of the Government to provide and finance universalised quality basic education, (2) The Central Government may, after due appropriation made by Parliament by law in this behalf, utilise, such sums of money of the Education Cess levied under sub-section (11) of Section 2 and this Chapter for the purposes specified in sub-section (1), as it may consider 92. Definition - The words and expressions used in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944), the Customs Act, 1962 (52 of 1962) or chapter V of the Finance Act 1994 (32 of 1994) shall have the meanings respectively assigned to them in those Acts Chapter, as the case may be 93 Education Cess on excisable goods- (1) The Education Cess levied under section 91, in the case of goods specified in the first Schedule to the Central Excise Tariff Act. 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Less on excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to provide and finance universalised quality of basic education, as has been given out under section 91 of the Act. 15. The very fact that the surcharge is collected as part of levy under three different enactments goes to show that scheme of levy of Education cess was by way or collecting special funds for the purpose of Government project towards providing and financing universalised quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied & collected 16. Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes Subject to the provision relating to the Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of providing rebate in respect thereof. The Notification dated 6/9/2004 had included the definition of Excise Duty only in consonance with the meaning of Excise Duty as was existing on the date Notification was issued, even if Explanation would not have been there the term Duty of Excise in ordinary circumstance would have included the surcharge levied as Education Cess in terms of Section 93 of the Act of 2004." Government finds that the Hon'ble High Court had examined the issue of admissibility of rebate claim of education cess in the context of Section 91, 92 & 93 of the Finance Act .1994. The Section 93 specifically says that Education cess levied under Section 91 shall be a duty of excise. Section 91 also stipulates that these shall be levied and collected as surcharge, a cess to be called Education Cess. Hon'ble High Court observed that it was made clear that in respect of these taxes the surcharge collected along with tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by respective enactments under which Education cess in the form of surcharge is levied and collected. Hon'ble High Court has finally allowed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provisions of para 1(iii) of the part-1 of Chapter 8 of Supplementary Instructions, 2005 and condition 23 (b) of Notification No. 19/04 CE(NT) stipulated that excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse. In this case initially goods were not cleared for export but it was a stock transfer to their own unit at Hosur on payment of duty. Since the goods are exported from Hosur unit on ARE-1/Invoice, the said goods are cleared for export on the date of preparation of ARE-1 at Hosur unit. Since the goods are exported within six months of their clearance from Hosur unit (date of ARE-1/invoices), the allegation of violation of condition 2(b) of the Notification No.19/2004-CE(NT) does not survive and hence, rebate claims cannot be disallowed on this count. 14. It is pertinent to mention here that GOI has decided the identical issue of automobile cess vide GOI order-No.1213/2010-Cx-dated-7.7.2010; in case of revision application No.195/193/08-RA-Cx filed by M/s Hyundai Motors India Ltd., Chennai against orders-in-appeal No. 1 to 16 (M-IV)(D) dated 18.2.2008, passed by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
