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TMI Blog2015 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Deputy Commissioner (Rebate) that the respondent has claimed the rebate of duty calculated on the value of goods on the basis of MRP in accordance with Section 4A of the Central Excise Act, 1944, whereas the claims in this respect should have been for duty calculated on the transaction value of goods to be determined in accordance with Section 4 of Central Excise Act, 1944. Accordingly show cause notice, dated 4-1-2012 was issued and after due process of adjudication the eligibility to the claim/rebate was concluded as admissible but only upto the extent of duty payable on transaction value (assessable value) under Section 4 of the Central Excise Act, 1944 as declared in relevant Central Excise Invoices and not for the full amount of duty paid on (higher) MRP value under Section 4A of the Central Excise Act, 1944. The original authority vide impugned Order-in-Original sanctioned the rebate claim of Rs. 71,05,078/- and rejected the claim of balance amount of Rs. 2,85,41,026/-. 3. On being aggrieved by the above orders-in-original of adjudicating authority the respondent herein preferred an appeal and the Commissioner (Appeals-II), Central Excise, Mumbai vide Order-in-Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Drugs (Price Control) Order, 1995, valuation is to be done on the basis of retail prices on labels of the containers of exported goods. It is wrong to come to the conclusion on the basis that only one or few provisions of Act/Law are applicable in certain matters. Principally, all the provisions including the provisions for scope and limitation of the Act/Law are required to be read together for drawing a conclusion regarding the applicability/non-applicability of certain provisions of the Act. The Commissioner (Appeals) in the subject OIA has not examined and discussed or even mentioned the provisions of the Essential Commodities Act, 1955 under which Drugs (Price Control) Order, 1995 was issued, which was only applicable to the goods sold in India and not on the export goods. Further the value as per Section 4A is five times more that the value as per Section 4 which is (declared on invoice issued under Rule 11 of Central Excise Rules, 2002) detailed below : FOB value as per Shipping Bill and commercial invoices Rs. 14,92,33,971/- Value as per Section 4 of Central Excise Act, 1944 Rs. 13,79,62,671/- Value as per Section 4A of Central Excise Act, 1944 Rs. 69,21,47,016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that export goods are to be assessed under Section 4 and not under Section 4A of the Central Excise Act, 1944. 4.5 Further, it is reflected that the transaction value shown in the invoice is less than the value shown in ARE-1, i.e. Section 4A MRP based value. The FOB value is arrived at after deducting the freight and insurance charges (if any) from the Commercial Invoice value. When the manufacturer himself is exporter, the transfer of goods takes place on board of foreign going vessel. The provisions of Section 2(h) and Section 4(3)(c)(iii) of the Central Excise Act which deal with definition of 'sale' and 'purchase' and 'place of removal' under the Central Excise Act are very relevant to decide the place of removal and transaction value in the instant case. While applying the definition of sale of goods in terms of Section 2(h) of the Act, the sale of goods takes place on board of foreign going vessel and while applying the definition of 'place of removal' in terms of Section 4(3)(c)(iii) of the Act, the same will have to be on board of foreign going vessel where transfer of goods takes place. Hence, the place of removal is on board the foreign going vessel. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and manufactured by the respondent i.e. medicaments is absolutely covered under Section 4A of the Central Excise Act [Notification No. 49/2008-C.E. (N.T.), dated 24-12-2008] for the purpose of assessment of duty whether for export or for home consumption. Moreover, as per the Central Excise Law the rebate sanctioning authority even cannot reassess the payment of duty made on the export goods by the respondent. 5.2 In this regard the respondent also rely on the judgment of the Hon'ble CESTAT in case of M/s. J.K. Papers Ltd. v. CCE reported in 2003 (157) E.L.T. 184 (CESTAT) wherein it is held that goods are to be assessed on the basis of ex-factory price at the time of removal. Subsequent deterioration and depreciation is immaterial. In this case, goods cleared without payment of duty for Export were subsequently diverted in local market as they were not accepted by the foreign buyer. Thus it is axiomatic that the rate of duty or tariff value applicable is the rate or value in force on the date when such goods were removed from the factory premises of the respondent and it is immaterial whether the goods are cleared for export or for home consumption because similarly after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning-cum-Adjudicating Authority/applicant in the impugned Order-in-Original is totally against the Central Excise Law. As per the Central Excise Law there is no difference when credit entry is allowed in the Bond Register by accepting that goods have been exported vis-a-vis by allowing rebate claim of duty paid on the exported goods. Because in both the situations duty liability has to be neutralized in respect of the duty paid on the export goods (stress invited Pl). Even if the Department wants to re-assess the duty then also the proper authority would be jurisdictional Central Excise Office, Sonipat. Relied upon case laws are : i. Judgment in the case of M/s. Reliance Industries Ltd. v. CCE - reported in 1999 (112) E.L.T. 653 (CEGAT) ii. M/s. India Poly Fibres Ltd. v. CCE - 1999 (111) E.L.T. 48 (CEGAT) iii. M/s. Orissa Synthetics v. CCE - 1999 (111) E.L.T. 111 (CEGAT) iv. M/s. Miltan Polyplast Pvt. Ltd. v. CCE - 2004 (166) E.L.T. 122 (CESTAT) 5.5 It is worth to mention that in other case also where duty has been paid on RSP i.e. in terms of Section 4A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduled formulations' and 'non-scheduled formulations' are categorically legally obliged to declare the retail sale price of the said formulations on the retail packs under the Drugs (Price Control) Order, 1995. Paragraphs 14 and 15 of the Drugs (Price Control) Order, 1995 provide for declaration of the retail sale price of the drugs/medicines and formulations on the label or container. The respondent has properly displayed retail sale price under the provisions of the Drugs (Price Control) Order, 1995, which is the only essential requirement under Section 4A ibid for the purpose of valuation of goods of the respondent. 5.9 From the above it is self-evident that the prices of the medicaments are exclusively controlled under the Drugs (Price Control) Order, 1995, and there is no discrimination whether such medicaments are meant for 'home consumption' or for 'export'. On careful perusal of all the provisions of Essential Commodity Act, 1955, Drugs (Price Control) Order, 1995 arid various Notifications issued thereunder, your goodself would find that there is no whisper that for the purpose of 'Export goods' which are produced in India, such provisions will not be applicable (st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Preferential Trade Agreement Between the Governments of the Republic of India and Malaysia. It is worth to mention here that the above Notification is neither part of the impugned SCN and order-in-original nor order-in-appeal also. Your goodself would appreciate that the said Notification referred to by the applicant in the impugned RA are far irrelevant to the present facts and circumstances of the case. It is quite evident that the impugned RA has been filed totally without applying mind and with the sole motive to reject the legitimate rebate claim of the respondent by hook or crook. 5.13 The instant case is not related to the refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004 and is related to the rebate of duty paid on the export goods under Rule 18 ibid. Hence it is clearly evident that the referred allegation is not relevant to the instant case and hence not tenable in the eyes of law. The respondent herein has also relied upon observations as contained in below mentioned case laws : i. Adarsh Metal Corporation v. UOI [1993 (67) E.L.T. 483 (Raj.)] ii. M/s. Bharat Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued a deficiency-cum-show cause notice on the point that the relevant assessments should have been made in accordance with Section 4 ibid because the impugned goods were cleared for the purpose of exports only for which consideration of "MRP" and hence Section 4A of the Central Excise Act are not relevant in any manner. Accordingly, the original authority sanctioned the rebate claim of duty payable on value determined under Section 4 of the Central Excise Act, 1944, amounting to Rs. 71,05,078/- and rejected the remaining claim of Rs. 2,85,41,026/-. Commissioner (Appeals) decided the case in favour of respondent party. Now, the applicant department has filed this Revision Application on grounds mentioned in para 4 above. 10. Government while taking note of respondent's objection of maintainability of this revision application before Central Government under the provisions of Section 35EE of the Central Excise Act, 1944, finds it proper to first examine the issue of jurisdiction. Hence, Government proceeds to discuss relevant statutory provisions. 10.1 Section 35EE of Central Excise Act, 1944. "'Section 35EE. Revision by Central Government. - (1) The Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; or (ii) the amount of fine or penalty determined by such order." 11. From the above, it is clear that if the Order-in-Appeal relates to rebate of duty of excise on goods exported or on excisable materials used in the manufacture of goods which are exported, then revision application lies before Central Government in terms of Section 35EE. The main issue to be considered is whether the said Order-in-Appeal relates to rebate of duty paid goods exported. In this regards, Government notes that in this case there is no dispute with regard to export of goods and compliance of provisions of Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004. The conditions and procedure stipulated in Not. No. 19/2004-C.E. (N.T.) stands fully complied with and export of duty paid goods is also established. So, there is no violation of any statutory provisions relating to rebate claim as far as Rule 18 of Central Excise Rules, 2002 r/w Not. No. 19/2004-C.E. (N.T.), dated 6-9-2004 is concerned. The dispute is whether valuation of export goods should be in terms of Section 4 or 4A of Central Excise Act, 1944. This case matter involves two i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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