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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 ..... 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 8 of CBEC Excise Manual. 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 pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . D. P. Singh, Joint Secretary ORDER These revision applications are filed by applicants M/s Cipla Ltd., Mumbai, M/s. Meditab Specialities Pvt. Ltd., Goa, M/s. Uni World Pharma Pvt. Ltd. Mumbai Okasa Pharma Ltd., Satara against; the orders-in-appeal passed by Commissioner of Central Excise (Appeals), Raigad, Mumbai-Ill, CBD, Belapur, Navi Mumbai /Mumbai-I, as detailed in the following table:- Sr. No. Revision Application No. Revision Application filed against order-in- appeal No. Date Applicant Order-in- Appeal passed by Commissioner of Central Excise (Appeals) 1. 195/734/12 BC/402/MUM-III/201112 dt. 30.3.12 Cipla Ltd. Mumbai-III 2. 195/551/13 ... BC/301/RGD/12-13 dt. 27.9.12 -do- Raigad 3. 195/184/13 BR(390 to 416)MI/2012 dt. 9.11.12 -do- Mumbai-I 4. 195/201/13 BC/362/RGD(R)/12-13 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -do- Raigad 21 195/658/13 BR/54-58/MI/2013 dt. 26.3.13 -do- Mumbai-I 22 195/660/13 BR/54-58/MI/2013 dt. 26.3.13 Okasa Pharma P. Ltd. -do- 23 195/661/13 -do- Uni World Pharma P. Ltd. -do- 24 195/662/13 BC/619/RGD/(R)/2012-13 dt. 28.2.13 Meditab Specialities P. Ltd. Raigad 25 195/666/13 BC/621/RGD/(R)/2012-13 dt. 28.2.13 -do- -do- 26 195/776/13 BC/12/RGD/(R)/2013-14 dt. 22.4.13 Okasa Pharma P. Ltd. -do- 2. Common brief facts of these cases, are that the applicants the merchant exporters filed rebate claims of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-CE(NT) dated 06.09.2004. The manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this proposition - (a) 1997 (92) ELT 13 (SC) - CCE vs. Indian Petro Chemicals, (b) 1991 (53)-ELT 347(T) - Indian Oil Corporation Ltd. vs. CCE (c) 1990 (47) ELT 7 (T) - Coromandal Prints Chemicals vs. CCE (d) 1989 (44) ELT 500 (T) Dunbar Mills Ltd. vs. CCE (e) 1985 (22) ELT 574 (T) - Calico Mills vs. CCE, (f) 2009 (242) ELT 168 Coca-cola Ltd. vs. CCE, (g) 2007 (209) ELT 321 (SC) - Share Medical. Care vs. UOI (h) 1998 (108) ELT 213 CCE vs. Cosmos Engineers (i) 2003 (160) ELT 1150 CCE vs. Thermopack Industries (j) 1996 (83) ELT 123 (T) Gothi Plastic Industries vs. CCE. 4.4 Notification No. 4/2006 Notification No. 2/2008 co-exist in the books of law and are not mutually exclusive. (i) It is an undisputed fact that bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessment It is well settled that rebate sanctioning authority cannot question the assessment of export consignment. As to how much duty, ought to be paid is beyond the Jurisdiction and realm of a rebate sanctioning authority. Hence, the impugned portion of the order-in-original is liable to be set aside. It is well settled that there is no estoppel in taxation. Hence, the fact that the applicants were availing Notification No. 4/2006-CE dated 1.03.06 in past is irrelevant for the present dispute. 5. Personal hearing was scheduled in these cases on 04.03.2014, No body attended the hearing. The applicant vide letter dated 18.02.2014, had stated that Government has already decided the said issue in their own case vide G.O.I. Revision order No. 1133-1137/12-Cx dated 07.09.2012, and some other orders and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Joint Secretary (TRU) DO Letter No. 334/1/2008-TRU dated 29.02.08, it was clearly stated that the excise duty on drugs and pharmaceutical products falling under Central Excise Tariff Headings (CETH) No. 3001, 3003, 3004, 3005 3006 (except 3006.60 and 3006.92) has been reduced from 16% to 8% and thus general effective rate for all goods of Chapter 30 is now 8%. Thereafter, said Notification No. 4/06-CE was amended vide Notification No. 58/08-CE dated 7.12.08 where under effective rate of duty was reduced to 4%. The Notification No. 4/06-CE*as further amended vide Notification No. 4/11-CE dated 01.03.2011 .and effective rate of duty was enhanced to 5% which was prevalent during the period when said exports were made. 8.2 The Joint Secretary (TRU) CBEC in his D.O. Letter DOF No. 334/1/2008-TRU dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 and, the same was further reduced to 4% vide amending the said notification vide notification no. 58/2008-CE dated 7.12.08. Further Notification No. 4/06-CE was amended vide Notification No. 4/11-CE dated 01.03.2011 and the effective rate of duty was enhanced to 5%. On the other hand, the tariff rate of duty for the Chapter heading 3004 was 16% adv. However subsequently reduction in general tariff rate of duty was effected as under: The Hon'ble Finance Minister in his speech while presenting the Union Budget for 2008-09 in the Parliament stated ,that:- PART B VIII. PROPOSALS TAX Para 144. The manufacturing sector is the backbone of any economy. It is consumption that drives production and it is production that drives investment. Having carefully studied current trends of production and consumption, I believe there is a need to give a stimulus to the manufacturing sector. Hence, I propose to reduce the general cenvat rate on all goods from 16 per cent to 14 per cent. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the above said budget speeches of Hon'ble Finance Minister. It is quite clear that Notification No. 2/08-CE dated 1.3.08(14%) and subsequent amending Notification No. 58/08-CE dated 7.12.08 (10%), 4/09-CE dated 24.02.09(8%) and 6/10-CE dated 27.02.10(10%), were issued to reduce/alter the general tariff rate of duty. 8.4. Government observes that the instructions issued by CBEC regarding assessment of export goods are quite relevant to decide the issue involved in these cases. The instructions contained in para 4.1 of Part-I of Chapter 8 of CBEC Excise Manual on Supplementary Instructions are 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 Faun ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N7) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, it is also noticed that applicant are clearing goods for home consumption on payment of duty @4% or 5% in terms of Notification No.4/06 CE as amended. The above said CBEC 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 good cleared for home consumption at lower rate of duty @4% or 5%. He has to choose anyone notification and assess all clearance of goods in the same manner even if there are two effective rates of duty as per two notifications. In this case, the situation is different since Notification No. 2/08-CE as amended prescribed duty at General Tariff rate of .10% whereas effective rate of duty is 4% or 5% vide Notification No. 4/06-CE as amended. Even the Joint Secretary (TRU),CBEC D.O Letter dated 29.02.08 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of Escorts Ltd. vs. CCE Delhi-II 2004 (173) ELT 113 (SC) observed, which inter alia stipulates Circumstantial flexibility , One additional or different fact may make a world of difference between conclusion of two cases. Disposal of two cases by blindly placing reliance on a decision, not proper. In para 11 of said judgment following observations are made :- 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 in deciding such cases. One should avoid temptation to decide cases by matching the colour of one case against the colour of another. 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 betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. A specific submission regarding non-applicability of this judgement are on the ground that this decision in Nahar Industrial Enterprises case is per in curium and hence not applicable. It has been argued that the Apex Court judgement cited here for the proposition that assesse is at liberty to avail benefit of notification which is more beneficial to him, were not considered by Hon'ble High Court of Punjab Haryana. In this regard, Government observes that applicability of said judgements of Hon'ble Supreme Court are already discussed in foregoing paras and therefore there is no merit in the pleading that said decision is per, in curium. So as discussed above, this judgement of Hon'ble High Court is squarely applicable to the instant cases. 8.9 The applicants have relied upon CBEC Circular No. 795/28/2004-CX dated 28.07.04 and 937/27/2010-CX dated 26.11.10 in support of their claim that they can avail both the notifications. In this regard, Government observes that subsequent to Budget, 2004 number of changes were made in the excise duty structure on Textiles and Textiles Articles. Regarding issue No. 1, CBEC clarified in Circular No. 795/28/2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part. The said para 3(b)(ii) is reproduced below : 3(b) Presentation of claim for rebate to Central Excise :- (i) (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. The said provisions of this notification clearly stipulate that after examining the rebate claim, the rebate sanctioning authority will sanction the claim in whole or part as the case may be depending -on facts of the case. Government notes that said notification Issued under Rule 18 of Central Excise Rules, 2002, prescribes the conditions, limitations and procedure to be following for claiming as well as sanctioning rebate claims of duty paid on exported goods. The satisfaction of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to manufacturer/applicant in the manner in which it was paid. Hon'ble High Court of Punjab Haryana at Chandigarh vide order dated 11.9.2008 in CWP Nos.2235 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. Vs. UOI reported as 2009 (235) ELT-22 (P H) has decided as under:- Rebate/Refund -Mode of payment - 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. Hon'ble High Court of Punjab Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat Credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the cenvat credit account of the concerned manufacturer subject to compliance of provisions of Section 12(B) of Central Excise Act 1944. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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