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TMI Blog2014 (12) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... ry No. 62-C) Notification No. 4/06-CE dated 1:03.06 as amended, which was still effective at the time of clearance of said goods. By virtue of Notification No. 2/08-CE dated 1.03.08 (entry no. 21) as amended by Notification No. 6/10-CE dated 27.02.10, duty has been increased from 8% to 10% on said goods. Thereafter applicant paid duty @10% on said exported goods. However, they continued to pay duty on such goods cleared for home consumption @4% adv. in, terms of Notification No.4/06-CE dated 1.03.06 as amended. The adjudicating authority after following the due process of law, sanctioned the rebate claims of duty paid @4% + Cess. The balance amount of duty paid on the exported goods was treated as excess paid duty and therefore the said amount was allowed to be recredited to their cenvat credit account. 3. Being aggrieved by the said orders-in-original, applicants filed appeals before Commissioner of Central Excise (Appeals) who after considering all the submissions, upheld the impugned orders-in-original and rejected the appeals of the applicants. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, a refund or rebate is always to be given only by a Cheque and the adjudicating authority, does not have any jurisdiction to allow rebate, by way of cenvat credit in the cenvat credit account of the applicants. 4.6 Attention is invited to Circular/Trade No. 795/28/2004-CX dated 28.07.04 issued by the Central Board of Excise & Customs, which, is in favour of the applicants. The Circular No. 937/27/2010-CX dated 26.11.10 already stand over ruled by the decision of the Hon'ble CESTA Tribunal in the case, titled as HYVA (India) Pvt. Ltd. vs. CCE Belapur 2010 TIOL-1410-CESTAT-MUM. 4.7 The Central Excise Duty, as per Sl. Entry Na. 84 of, the List (1) or Union List of the 7th Schedule to the Constitution of India, 1950), is leviable on, the goods,. manufactured or produced in India and therefore, it is a Tax, on the activity, called as, manufacture of goods, such goods, called, as, excisable goods, specified in the Schedule to the Central Excise Tariff Act, 1985, read with, Section 2(d) of the Central Excise Act, 1944 and accordingly, Central Excise Duty is payable by the Manufacturer on the excisable goods, produced by him, even when supplied as free goods or free samples and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) upheld the impugned Orders-in-Original. Now, the applicants have filed these revision applications against the impugned Orders-in-Appeal on the grounds stated above. 8. The applicants have contended that both the said notifications have approval of Parliament and therefore they are at liberty to avail any notification which ever they find beneficial to them. Therefore they have claimed to be eligible for rebate of duty paid on export goods @10% in terms of Notification No. 2/08-CE dated 1.03.08 as amended. 8.1 It is observed that Central Government issued Notification NO. 2/08-CE dated 1.03.08 which has an effect of reduction in general rate of Central Excise duty on various products from 16% to 14%. Subsequent amendment by Notification No. 58/08-CE dated 7.12.08 reduced the genera rate from 14% to 10%. Vide Notification No 4/09-CE dated 24.2.09, it was further amended to reduce the general rate of duty from 10% to 8%. Finally the Notification No.2/08-CE was amended by Notification No. 6/10-CE dated 27.02.10 to enhance the said general rate of duty from. 8% to 10%. Pharmaceutical drugs and medicines falling under Chapter 30 of First Schedule to Central, Excise Tariff Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; 3. Drugs and Pharmaceuticals 3.1 Excise duty or drugs and pharmaceuticals falling under Heading Nos. 3001, 3003 (export Menthol crystals), 3004, 3005 and 3006 (except 3006 60 and 3006 92 00) has been reduced from 16% to 8%. Thus the general effective rate for all goods of Chapter 30 is now 8%. However certain specified items such as life saving drugs to continue to be fully exempt. Excise duty has been fully exempted on Anti - AIDS drug ATAZANAVIR, and bulk drugs for its manufacture " The Joint Secretary (TRU) CBEC has made it amply clear that reduction in General Tariff Rate has been carried out by Notification and therefore there could be a possibility of same item being covered by two notifications and directed that the rate beneficial to assessee may be extended. However, in present case the issue involved is not exactly regarding applicability of two notifications for payment of duty but rebates of duty paid at tariff rate or effective rate is to be allowed. 8.3 It is felt that it is necessary to go into the background to find out the reason behind the issue of these two notifications. Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only rate below the mean rate. There is a case for enhancing the rate on many items appearing in this list to 8 per cent, which I propose to do, with the following major exceptions: food items; and drugs, pharmaceuticals and medical equipment. Some of the other items on which I propose to retain the rate of 4 per cent are paper, paperboard& their articles; items of mass consumption such as pressure cookers, cheer electric bulbs, low priced footwear, water filers / purifiers, CFL etc.: power driven pumps for handling- water and paraxylene." Further, the Hon'ble Finance Minister in his speech while presenting the Union Budget for 2010-11 in the Parliament stated that: "PART- B INDIRECT TAXES 142. Unlike the time I presented the last Budget, symptoms of economic recovery are more widespread and clear-cut now. The three fiscal stimulus packages that the Government introduced in quick succession have helped the process of recovery significantly. The improvement in our economic performance encourages a course of fiscal correction even as the global situation warrants caution. Therefore, I propose to partially roll back the rate reduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions. As explained above, 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. Therefore they have to be read together as stipulated in Para 4.1 of Part-I of Chapter 8 of CBEC Excise Manual. In fact, this confusion has arisen since in ,this case the General tariff rate was reduced through Notification when special economic stimulus package was-announced in 2008 by Government to deal with ongoing economic recession. Normally changes in General tariff rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7 Applicant has relied upon number of case laws to the proposition that it was upto the assesse to choose a notification which is most beneficial to him. Government of India notes that in cases cited namely: * CCE Baroda vs. India Petro Chemicals 1997 (92) E. L.T 13 (SC) * HCL Ltd. vs. CC New Delhi 2001 (130) ELT 405(SC) Hon'ble Supreme Court has held that when two notifications co-exit simultaneously, the, assessee has the option to choose anyone of the notifications beneficial to him. Hon'ble Apex Court 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. Whereas in the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notification. 8.8 The above said judgement is not in the context of sanctioning of rebate claims in terms of rule 18 of Central Excise Rules 2002 read with Notification No. 19/04-CE(NT) dated 06.09.2004. The cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification/eligibility of claimant CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad 2007 (208) ELT 505 (T. Ahd.), while relying on above said Apex Court judgement has held that exemption notification has to be construed as if this rate was prescribed by statute and when the legislature has decided to exempt certain goods by notification, the exemption cannot be negated by an assessee by opting for payment of duty. 9. In view of position explained in foregoing paras, Government finds that 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. 10. Government notes that 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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