9911796707
TMI Blog2015 (3) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... t the applicable legislations as issued for the purpose. Therefore, in this case any plea of ignorance of law cannot be admitted as legal and proper, as such the respondent was required to pay duty @ 4% on 7-12-2008 in terms of Notification 58/2008-C.E., dated 7-12-2008. The rebate of duty paid @ 4.12% in terms of Notification No. 58/2008-C.E., dated 7-12-2008 is admissible to the respondent under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Impugned order is set aside - Decided in favour of Revenue. - F. No. 198/441/2011-RA - Order No. 1646/2012-CX - Dated:- 4-12-2012 - Shri D.P. Singh, Joint Secretary None, for the Department. Shri Ganesh Bapu TR, Advocate, for the Assessee. ORDER This revision application is filed by the applicant Commissioner of Central Excise, Customs Service Tax, Raigad against order-in-appeal No. YDB/191/RGD/2010, dated 7-3-2011 passed by Commissioner of Central Excise (Appeals), Mumbai Zone-II. M/s. Ipca Laboratories Ltd., Mumbai are the respondents herein. 2. Briefly stated facts of the case are that the respondent M/s. Ipca Laboratories Ltd., Mumbai are manufacturer expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable. 4.2 The ignorance of law is not an excuse to pay the duty at higher rate. The goods are self assessed by the assessee and the assessee who are in excise for so many years; it is frivolous to give such an excuse. The assessee should be aware of the changes/modifications made in law rate of duty etc. and implement them immediately as per the requirement. 4.3 In the case of Rakesh Kanungo v. CCE, Mumbai - 2004 (178) E.L.T. 1061 (Tri.-Mum.)] wherein inter alia it was held that Appeal to Appellate Tribunal - Restoration of appeal - Ignorance of law is no excuse - Appeal withdrawn for filing application before Settlement commission - .. 4.4 In the case of Worldwide Diamond Manufacturers Pvt. Ltd. v. CCE, Vishakhapatnam - [2010 (249) E.L.T. 402 (Tri.-Bang.)] it was held that Demand - DTA clearances of EOU - Non payment of 50% of Additional Duty of Customs leviable under Section 12 of Customs Act, 1962 in terms of Notification No. 2/95-C.E. - Assessee s plea that they were not aware of their liability rejected as ignorance of law was no excuse - it was more so as they had not contested their liability to duty - Section 11A of Central Excise Act, 1944. 4.5 By refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner but the claim is filed with the Maritime Commissioner, Raigad and the Assistant Commissioner, Rebate has passed the rebate order. The subject order-in-original is rightly challenged by the department before Commissioner (Appeals) under the provisions of Section 35(1) of Central Excise Act, 1944. 4.6(c) Hon ble CESTAT in case of M/s. Gimatex Industries Pvt. Ltd. v. CCE, Nagpur [2010 (261) E.L.T. 1026 (Tri.-Mum.)] has held that in case of self assessment by the assessee, when neither any decision of Central Excise Officers nor any order of Central Excise Officers is available then challenging of the same does not arise. The Tribunal also relied on the case of Nagpur Transwell Power Pvt. Ltd. v. CCE, Nagpur - 2009 (243) E.L.T. 459 (T), which disposing of the stay application, held that proposition that assessment includes self assessment is not correct for the purpose of appeal under Section 35F of the Central Excise Act. The Tribunal held that it is difficult to envisage that the said provision of law provides for an appeal against self-assessment and held that without any decision or order passed by the Central Excise Officer lower to the rank of Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds : 5.1 There is no valid ground in the appeal filed by the department. Hence, the appeal filed by the department is liable to be set aside on this ground alone because the sole contention of the department is that the noticees have paid excess duty at the time of clearance of the goods for export on 7-12-2008 (Invoice No. 892, dated 7-12-2008/ARE-1 No. 771/2008-09, dated 7-12-2008). On 7-12-2008, the rate of duty on the said goods was reduced from 8% to 4%. However, the notices cleared the said goods for export on 7-12-2008 on payment of duty at the rate of 8% instead of 4%. The contention of the department is that since the noticees had paid excess duty excess rebate had been sanctioned to the noticees, which is incorrect. 5.2 The noticees are entitled to rebate of entire duty paid on goods exported because conditions and procedures to claim rebate are prescribed under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 to be read with Rule 18 of Central Excise Rules, 2002. The essential condition prescribed under the said Notification is that the goods shall be exported after payment of duty. The fact that the notices have made the export is not at all in dispute. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 discussed in para 5 above. Nobody attended personal hearing from applicant side. 7. Government has carefully gone through the relevant case records and perused the impugned Orders-in-Original and orders-in-appeal. 8. On perusal of records, it is observed that there is no dispute on the factual details of the completion of impugned exports of pharmaceuticals products of Chapter 30 of Central Excise Tariff after clearance of the same on 7-12-2008 by paying Central Excise duty @ 8% whereas on or after 7-12-2008 reduced rate of duty @ 4% was applicable in terms of Notification No. 58/2008-C.E., dated 7-12-2008. It is also noted that the department is agitating only one Export Invoice No. 892, dated 7-12-2008 (ARE-1 No. 771/2008-09, dated 7-12-2008) for which one excess payment of ₹ 2,80,780/- is being alleged. Thus as submitted by the respondent herein that sole and main ground of this revision application is that by virtue of Notification No. 4/2006-C.E., dated 1-3-2006 as amended by Notification No. 4/2008, dated 1-3-2008 and Notification No. 58/2008-C.E., dated 7-12-2008, the rate of duty on the product falling under Ch. 30 have been reduced from 8% to 4% w.e.f. 7-12-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 C.B.E. C. Instructions in this case. 11. Government also observes that the C.B.E. C. Circular No. 510/06/2000-CX., dated 3-2-2000 has also been discussed and relied upon by Commissioner (Appeals) as well as respondents. In this regard, the Government observes that as per para 3(b) (ii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate sanctioning authority has to satisfy himself that rebate claim is in order before sanctioning the same. If the claim is in order he shall sanction the rebate either in whole or in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 manner in which it was paid by him initially. 13. Finally, Govt. is of considered opinion that what the settled principle of law are that in the interest of natural justice for equity of law, whatever the implications may be i.e. either of benefits/refunds or of liability/recoveries, the applicable date of effect would be same and that can only be the date of coming into effect the applicable legislations as issued for the purpose. Therefore, in this case any plea of ignorance of law cannot be admitted as legal and proper, as such the respondent was required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
