9911796707
TMI Blog2015 (1) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... 19/2004-CE (NT), Notification No. 32/08-CE (NT) dt. 28-08-2008 and Rule 14 of Pan Masala Packing Machines Rules 2008. Following decision of assessee's own previous case [2015 (1) TMI 666 - GOVERMENT OF INDIA] - the rebate of duty paid on goods exported prior to 02-07-2011 is admissible - Decided partly in favour of Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... dment dated 02-07-2011 and CBEC circular dated 30-08-2011 cannot be made applicable with retrospective effect unless or otherwise spaded ;herein and allowed the appeal of the respondent party. 4. Being aggrieved by the impugned Order-in-Appeal, the department has filed this revision application under section 35EE of Central Excise Act 1944 before Central Government on the following grounds: 4.1 The Commissioner (Appeals) has erred in holding that the exports took place before 02-07-2011 i.e. prior to issue of amendment notification dated 02-07-2011 issued by Ministry of Environment and Forest. The date of ARE-1 cannot be taken as the date of export 23 out of the 27 consignments left India after 02-07-2011 as shown in the annexure I to the statement of facts. The goods are really exported when they leave the port of export. In 23 cases as per the certificate given by the customs authority at the port of export on the ARE-1, the export took place after 02-07-2011. 4.2 There had been a condition with effect from 04-02-2011 that sachets using plastic material should not be used for storing packing or selling Gutkha, tobacco and Pan Masala under rule 5 (d) of plastic waste (Managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. 4.6 Because the order No. 1662-1714/12-Cx dated 06-12-2012 passed by the Joint secretary to the Government of India is distinguishable in the facts and circumstances of this case. In that case the rebate sanctioning authority did not have the benefit of reading CBEC letter dated 30-08-2011 and Trade Notice No. 19/2011, dated 14-09-2011 of Lucknow Central Excise Commissionerate. 5. Show cause notice was issued to the respondent under section 35EE of the Central Excise Act, 1944 to filed their counter reply. The respondents vide their written submission dtd. 22-02-2014 mainly stated as under: 5.1 In view of the Show Cause Notice, dated 24.11.2011, proposing to reject all the rebate claims on account of contraventions of provisions of Plastic Wastes (Management and Handling) Rules, 2011, we contested the Show Cause Notice on various grounds. However, our claims were rejected by Assistant-Commissioner, Farukhabad Division vide his order no. 14/ACF/Rebate/2012 dated 25.06.2012. However, we filed an appeal against the aforesaid order of the adjudicating authority before Central Excise Commissioner (Appeals), Lucknow. The Commissioner (Appeals), relying on Government of India Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the goods which are exported and not the tax. In case of export, even the duty paid on inputs and raw materials, whether procured indigenously or on account of import, it is refunded back to the exporter by the way of rebate, by the way of drawback and even allowing the CENVAT Credit when the goods are exported under bond. Even the element of Octroi, Inter-state entry Tax, Commercial Tax/VAT are also refunded back to the exporter. When admittedly the 'Pan Raj', a Pan Masala containing tobacco, had already been successfully exported and when export proceeds have already been realized by the exporter through proper banking channels, where is the question of not to refund back the Central Excise duty by the way of rebate when the goods were cleared on payment of duty had already been exported. The Assistant Commissioner, Farukhabad should have realized that the provisions of Plastic Waste (Management and Handling) Rules, 2011, made and issued by Ministry of Environment & Forest had no extra-territorial jurisdiction. Those rules could only be applied to manufacturers and consumers of plastic bags which are Indian citizens and body corporate duly registered in India. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds of Revision Application. Shri B. R. Tripathi, advocate attended hearing on behalf of respondent who reiterated the points made in their written reply dated- 22-03-2014 and stated that Order-in-Appeal being legal and proper may be upheld. 7. Government has carefully gone through the relevant case records available in the case file and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government observes that the said rebate claims initially rejected by the original authority were allowed in appeal by the Commissioner (Appeals). The appellate authority held that Gutkha was exported from the factory of applicant between the period 07-06-2001 and 01-07-2011 i.e. prior to issue of amendment dated 02-07-2011 in the Plastic waste (Management and Handling) Rules 2011 issued by Ministry of Environment and Forest and CBEC circular dated 30-08-2011 which cannot be made applicable with retrospective effect. Now, the applicant department has filed this revision application on grounds mentioned in para (4). 9. Government notes that rule 2 of Plastic waste (Management an Handling) Rules, 2011 notified on 04-02-2011, stipulates that provisions of Rule 5 and 8 shall not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dtd. 02-07-2011, issued by Ministry of Environment and Forest (MOEF), in the Plastic Waste Rules 2011 and therefore rebate claim is not admissible on such exports. 11.1 Government notes that as-per rule 18 of Central Excise Rules 2002, the rebate claim become admissible only after duty paid excisable goods are exported and the condition/procedure as laid down in the Notification No. 19/04/CE (NT) is compiled with. As per section 11B of Central Excise Act 1944 the rebate claim is to be filed within one year of relevant date. Explanation B define relevant date as:- " (a) in the case of goods exported out of India where a refund of excise duty paid is available in r/o goods themselves or as the case may be the excisable materials used in the manufacture of such goods- (i) if the goods are exported by sea or air the date on which the ship or the air craft in which such goods are loaded leaves India. Or (ii)------ ---------------------------------------------------------------- 11.2 Further the word export in defined in section 2 (18) of Customs Act, 1962 as under:- " (18) 'export' with its grammatical variations and cognate expressions, means taking out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
