9911796707
Advanced Search 
TMI Blog2013 (1) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX., dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944. W.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act and therefore said Circular issued prior to the introduction of transaction value concept, cannot be strictly applied after 1-7-2000. 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. There is no mandate to sanction rebate claim of obviously exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai. 2 195/1124/12 BC/189/Mum-III/11-12, 27-7-2012 -do- 3 195/1125/12 BC/191/Mum-III/11-12, 27-7-2012 -do- 4 195/1126/12 BC/193/Mum-III/11-12, 27-7-2012 -do- 5 195/1127/12 BC/194/Mum-III/11-12, 27-7-2012 -do- 6 195/1128/12 BC/199/Mum-III/11-12, 27-7-2012 -do- 7 195/1632/12 BC/296/Mum-III/11-12, 27-9-2012 -do- 8 195/1633/12 BC/298/Mum-III/11-12, 27-9-2012 -do- 9 195/1634/12 BC/299/Mum-III/11-12, 27-9-2012 -do- 10 195/1635/12 BC/292/Mum-III/11-12, 27-9-2012 -do- 11 195/1636/12 BC/302/Mum-III/11-12, 27-9-2012 -do- 12 195/1637/12 BC/318/Mum-III/11-12, 19-10-2012 -do- 13 195/1634/12 BC/320/Mum-III/11-12, 19-10-2012 -do- 14 195/1635/12 BC/46-328/Mum-I/12, 10-9-2012 Commissioner of Central Excise (Appeals), Mumbai Zone-I Mumbai 2. Common brief facts of these cases, are that the applicant a merchant exporter filed rebate claims of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The manufacturers had paid duty on said exported goods @ 10% under Notification No. 2/08-C.E., dated 1-3-2008 as amended. Similarly the manufacturers had cleared sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) E.L.T. 13 (S.C.) - CCE v. Indian Petro Chemicals, (b) 1991 (53) E.L.T. 347 (T) - Indian Oil Corporation Ltd. v. CCE, (c) 1990 (47) E.L.T. 7 (T) - Coromandal Prints & Chemicals v. CCE, (d) 1989 (44) E.L.T. 500 (T) - Dunbar Mills Ltd. v. CCE, (e) 1985 (22) E.L.T. 574 (T) - Calico Mills v. CCE, (f) 2009 (242) E.L.T. 168 - Coca-cola Ltd. v. CCE, (g) 2007 (209) E.L.T. 321 (S.C.) - Share Medical Care v. UOI, (h) 1998 (108) E.L.T. 213 - CCE v. Cosmos Engineers, (i) 2003 (160) E.L.T. 1150 - CCE v. Thermopack Industries, (j) 1996 (83) E.L.T. 123 (T) - Gothi Plastic Industries v. 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 both the Notifications under consideration are in existence simultaneously. Both the aforesaid Notifications do not have any provisions excluding the other. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-C.E., dated 1-3-2006 in past is irrelevant for the present dispute. 5. Personal hearing was not yet scheduled in these cases. However the applicant vide letter dated 14-12-2012, submitted that Government has already decided the said issue in their own case vide G.O.I. Revision Order Nos. 1133-1137/12-CX., dated 7-9-2012 and therefore requested to decide these cases also without fixing any personal hearing. 6. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 7.&emsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-2-2010 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-C.E., dated 1-3-2008 as amended, attracted general tariff rate of duty @ 10%. At the same time the Notification No. 4/06-C.E., dated 1-3-2006 providing for effective Nil rate of duty was amended vide Notification No. 4/08-C.E., dated 1-3-2008 by inserting Sr. Nos. 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 29-2-2008, 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-C.E. was amended vide Notification No. 58/08-C.E., dated 7-12-2008 where under effective rate of duty was reduced to 4%. The Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is necessary to go into background to find out the reason behind the issue of these two notifications. Notification No. 4/2006-C.E., dated 1-3-2006 when issued, originally did not prescribed any concessional rate of duty to medicaments of Chapter Heading 3004 and a concessional rate of duty @ 8% was prescribed by amending the said notification vide Notification No. 4/2008-C.E., dated 1-3-2008 and the same was further reduced to 4% vide amending the said notification vide Notification No. 58/2008-C.E., dated 7-12-2008. Further Notification No. 4/06-C.E. was amended vide Notification No. 4/11-C.E., dated 1-3-2011 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reduction in Central Excise Duties and enhance the standard rate on all non-petroleum products from 8 per cent to 10 per cent ad valorem." From above, it is noted that intention of Legislature behind said two notifications is best revealed in the above said Budget Speeches of Hon'ble Finance Minister. It is quite clear that Notification No. 2/08-C.E., dated 1-3-2008 (14%) and subsequent amending Notification No. 58/08-C.E., dated 7-12-2008 (10%), 4/09-C.E., dated 24-2-2009 (8%) and 6/10-C.E., dated 27-2-2010 (10%), were issued to reduce/alter the general tariff rate of duty. 8.4 Government observes that the instructions issued by C.B.E. & C. 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 C.B.E. & C. Excise Manual on Supplementary Instructions may be perused which 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 Form ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N.T.), dated 6-9-2004 (See Part 7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly changes in General tariff rate are carried out through Finance Bill/Act. Government, therefore is of the view that duty was payable @ 4% on the export goods also and rebate cannot be granted on the duty paid in excess of effective rate prescribed in the Notification No. 4/2006-C.E., dated 1-3-2006 as amended, as stipulated in the above said C.B.E. & C. Instructions. 8.5 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. 4/2006-C.E. as amended. The above said C.B.E. & C. 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 goods cleared for home consumption at lower rate of duty @ 4% or 5%. He has to choose any one 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. 2/2008-C.E. as amended prescribed duty at General Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are not in the context of sanctioning of rebate claims in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 of the duty paid either at general tariff rate or at the effective rate. The cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification/eligibility of claimant. None of the said judgment are on the issue of sanctioning rebate of duty paid on exported goods. For applicability of the cited precedents "Government is of the opinion which is guided by the observations of Hon'ble Supreme Court in Para 10 of the judgment in case of Escorts Ltd. v. CCE, Delhi-II - 2004 (173) E.L.T. 113 (S.C.) observed, which inter alia stipulates precedent - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be. 8.8.3 Government also notes that Hon'ble High Court of Punjab & Haryana has examined the identical issue in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI - 2009 (235) E.L.T. 22 (P & H) wherein assessee had paid duty on export goods at tariff rate of 16% ignoring the exemption Notifications No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 prescribing duty @ 4% and nil respectively. Hon'ble High Court has upheld the Government of India Revision Order upholding the order of original authority. In this case, original authority had allowed rebate of duty paid at effective rate of 4% and allowed re-credit of balance amount in the Cenvat credit account of assessee. A specific submission regarding non-applicability of this judgment are on the ground that this decision in Nahar Industrial Enterprises case is per incuriam and hence not applicable. It has been argued that the Apex Court judgment cited here for the proposition that assessee 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 judgments of Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant has relied upon this authority's GOI Order No. 208/10-CX., dated 3-2-2010 in the case of Auro Spinning Mills - 2012 (276) E.L.T. 134 (GOI) during hearing of case held on 9-8-2012. Government notes that in the cited case, there were two exemption notifications which were availed simultaneously in terms of C.B.E. & C. Circular dated 28-7-2004. 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 C.B.E. & C. 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 of 4% in terms of Notification No. 29/2004-C.E. 8.11 Government observes that the respondent in their counter reply relied upon C.B.E. & C. Circular No. 510/06/2000-CX., dated 3-2-2000. In this regard, the Government observes that w.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act and therefore said Circular issued prior to the introduction of transaction value concept, cannot be strictly applied after 1-7-2000. As pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneously paid rebate claim. Therefore, the Circular of 2000 as relied upon by applicant cannot supersede the provisions of Notification No. 19/2004-C.E. (N.T.). Adjudicating authority has rightly passed the order-in-original in accordance with law. The amount paid in excess of duty payable on one's own volition cannot be retained by Government and it has to be returned 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. v. UOI reported as 2009 (235) E.L.T. 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 case regardless of made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
