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TMI Blog2015 (1) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... cialities P. Ltd. Raigad 5 195/205/13 BR/383 to 389)MI/2012 dt. 9.11.12 Okasa Pvt. Ltd. Mumbai-I 6. 195/206/13 -do- -do- -do- 7. 195/383/13 BC/414/RGD(R)/12-13 dt 27.11.12 Cipla Ltd. Raigad 8 195/387/13 BC/421/RGD(R)/12-13 dt 27.11.12 Uni world Pharma P. Ltd. -do- 9 195/388/13 BC/422/RGD(R)/12-13 dt 27.11.12 -do- -do- 10 195/389/13 BC/423/RGD(R)/12-13dt 27.11.12 -do- -do- 11 195/391/13 BC/425/RGD(R)/12-13 dt 29.11.12 -do- -do- 12 195/460/13 BR(1 to 4)MI/2013 dt. 19.12.12 Uni World Pharma P. Ltd. -do- 13 195/461/13 BR(10 to 24)MI/2013 dt. 1.2.13 Okasa Pharma P. Ltd. -do- 14 195/462/13 BR(10 to 24)MI/2013 dt. 1.2. 13 Uni World Pharma P. Ltd. -do- 15 195/463/13 BR(10 to 24)MI/2013dt. 1.2.13 Cipla Ltd. -do- 16 195/487/13 BC/525/MUM- lit)/12- 13 dt. 23.1.13 Cipla Ltd. Mum-III 17 195/488/13 BC/526/MUM-III(R)/12-13 dt. 23.1.13 -do- -do- 18 195/489/13 US/912/RGD/12 dt. 18.12.12 Meditab Specialities P. Ltd. Raigad 19 195/545/13 BR(42-43)MI/13 dt. 13.3.13 Cipla Ltd. Mumbai-I 20 195/655/13 BC/618/RGD(R)/12-13 dt. 28.2.13 -do- Raigad 21 195/658/13 BR/54-58/MI/2013 dt. 26.3.13 -do- Mumbai-I 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (i) In other words, when both the Notifications co-exist simultaneously and do not mutually exclude the other, they had option to choose between the aforesaid notifications. When pluralities of exemption are available, the assessee has the option to choose any of the exemptions, even if the exemption so chosen is generic and not specific. The above legal proposition is well settled by the Supreme Court in HCL Ltd. vs. Collector of Customs, New Delhi 2001 (130) ELT 405 (SC), wherein it was held that -"The question in these appeals is covered in favour of the applicant by the order of this Court in Collector of Central Excise, Baroda V Indian Petro Chemicals [1997 (92) EL T 13]. Where there are two exemption notifications that cover the goods in question, the assessee is entitled to the benefit of that exemption notification which gives him greater relief, regardless of the fact that that notification is general in its terms and the other notifications is more specific to the goods (ii) They also further referred and relied on following decision of Supreme Court, High Court and CESTAT for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate of the excise duty paid on goods exported , reads as under: "Rule 18 where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." (ii) The conditions and procedures to claim rebate are prescribed under Notification No. 19/2004-CE(NT) dated 6.09.04 and the essential condition prescribed under the said Notification is that the goods shall be exported after payment of duty. The fact that the goods which have been exported and have suffered excise duty is also not in dispute. (iii) The CESTAT in the case of Gayatri Laboratories vs. CCE 2006 (194) ELT 73 (T) held that rebate claim to the extent of duty paid is available and that the rebate claim cannot be restricted on ground that less duty should have been paid in terms of Notification. 4 6 Rebate sanctioning authority cannot question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 LL 14%. Thereafter, this notification was amended by Notification No. 58/08-CE dated 7.12.08 reducing the said general rate from 14% to 10%. Vide Notification No. 4/09-CE dated 242.09 said Notification 2/08-CE 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, 1985 covered under serial entry No. 21 of table to Notification No. 2/08-CE dated 1.03.08 as amended, attracted general tariff rate of duty @10%. At the same time the Notification No. 4/06-CE dated 1.03.06 providing for effective Nil rate of duty was amended vide Notification No. 4/08-CE dated 1.03.08 by inserting Sr. No. 62A, 62B, 62C, 62D & 62E for CETH 3001, 3003, 3004, 3005, & 3006(except 3006.60 & 3006.92) prescribing effective rate of duty @8%. Even in Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs continue to be fully exempt. Excise duty has been fully exempted on Anti-AIDS drug ATAZANA VIR, 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. 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. 8.3 It is felt that it is necessary to go into background to find out the reason behind the issue of these two notifications. Notification No. 4/2006-CE dated 1.03.06 when issued, originally did not prescribed any concessional rate of duty to medicament of Chapter Heading 3004 and a concessional rate of duty @8% was prescribed by amending the said notification vide notification no. 4/2008-CE dated 1.03.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......further convergence of central excise duty rates to a mean rate - currently 8 per cent. I have reviewed the list of items currently attracting the rate of 4 per cent, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 2002. The CBEC instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. While sanctioning rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of the instructions. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons have to be consistent with the circulars, consistency and discipline are of far greater importance than winning or losing court proceedings. In view of said principles laid by Hon'ble Supreme Court, Government upholds the applicability of above said CBEC Instructions in this case. 8.7 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. GOI order in case of M/s. Bhagrath Taxtile Ltd: 2006(2002) E. L.T 147 (GOI) relied upon by the applicant is not relevant in the impugned case as the fact of this case are different. Government notes that in the case cited namely CCE Baroda vs. India Petro Chemicals 1997(92) ELT 13(SC), the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court has held in the case of CCE vs. Parle Exports 1988 (38) ELT 741 (SC) that when a notification is issued in accordance with power conferred by statute, it has statutory force and validity and therefore exemption under notification is, as if it were contained in the Act itself. Apex Court has clearly observed that any exemption notification specifying effective rate has to be complied with. In this regard, Hon'ble CESTAT Ahmedabad Bench in its judgement in the case of Mahindra Chemicals vs. CCE Ahmedabad 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. 8.8.2 Hon'ble Supreme Court has also held in the case of M/s Belapur Sugar and Allied Industries Ltd. vs. CCE 1999 (108) ELT 9 (SC) that even if duty paid under ignorance of law or otherwise, the rebate cannot be refused since party has paid the duty. Further, Hon'ble Apex Court has held that if the duty paid shown to be not leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 29/04-CE dated 9.07.04 simultaneously? Clarification: Notification No. 9/04-CE (prescribing optional duty at the rates of 4% for pure cotton goods and 8% for other goods) and Notification No. 30/04-CE(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. 29/04-CE and for goods availing Notification No. 30/04-CE In this case, both the Notifications prescribed effective rates of duty. Notification No. 30/04-CE 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. This circular is of no help to the applicant as in their case there are no two conditional notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty paid on exported goods. The satisfaction of rebate sanctioning authority requires that rebate claim as per the relevant statutory provisions is 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 cannot supersede the provisions of Notification No. 19/04-CE(NT). Applicants have relied upon this authority's GOI Order No. 208/10-CX dated 3.02.10 in the case of Auro Spinning Mills 2012 (276) ELT 134 (GOI) during hearing of case held on 9.08.12. Government notes that in the cited case, there were two exemption notifications which were availed simultaneously in terms of CBEC Circular dated 28.07.04. In case of home consumption clearance, no cenvat credit was availed and clearances were made at nil rate. Assessee was also maintaining separate accounts for both types of clearance as required in the CBEC Circular. Government did not allow rebate of duty paid at tariff rate @16% but rebate claim was allowed of the duty paid at the effective rate of4%o in terms of Notification No. 29/04-CE. 8.11 Government notes that sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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