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TMI Blog2018 (9) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... r was not liable to discharge excise duty on the goods exported in view of the absolute exemption from payment of duty under Notification No.12/2012, dated 17-3-2012 and that therefore the amount paid could not have been treated as duty paid, so as to enable them to claim rebate. Whether the exemption granted under Notification No.12/2012, was absolute and unconditional? - Held that:- The exemption Notification was not a blanket exemption. It was an exemption available to the goods of a particular description, subject to their satisfying two conditions viz., (a) that they are cleared in packaged form and (b) that their per kg. retail sale price equivalent does not exceed ₹ 100/-. Even the definition of the expression “retail sale p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Tariff Act, 1985. According to the petitioner, they cleared the subject goods for both domestic as well as export market. In respect of the goods cleared for export, the petitioner makes payment of the duty of excise on the transaction value as per Section 4 of the Central Excise Act, 1944 and avails CENVAT Credit on the inputs and input services. According to the petitioner, they export biscuits through their merchant exporters with price being the sole consideration and the orders are executed in US $/other foreign exchange terms without any sale being done in the Indian currency. 4. On 01-3-2007, the Central Government issued Notification No.3/2007 in exercise of the powers conferred by Section 5A(1) of the Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, the revision is to an officer of the level of Joint Secretary to Government. Since the 1st respondent viz., the Commissioner (Appeals) is also of the same rank as Joint Secretary to Government, the petitioner has chosen to bypass the alternative remedy of revision and come up before this Court by way of writ petition. 8. There is no dispute about the fact that the order of the 1st respondent is not amenable to the jurisdiction of the CESTAT under Section 35B. By virtue of Clause (b) of the proviso to Section 35B(1), no appeal shall lie to the Appellate Tribunal, as against an order relating to a rebate of duty of excise. Therefore, a revision to the Central Government alone will lie under Section 35EE(1). The grievance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Therefore, the petitioner availed rebate of duty. 13. But the stand of the Department is that the petitioner was not liable to discharge excise duty on the goods exported in view of the absolute exemption from payment of duty under Notification No.12/2012, dated 17-3-2012 and that therefore the amount paid could not have been treated as duty paid, so as to enable them to claim rebate. 14. The Appellate Commissioner agreed with the Department and held that under Section 5A(1A) of the Central Excise Act, 1944, no option is available to any person to pay duty, when goods are exempted from payment of the whole of the duty unconditionally. The Commissioner (Appeals) held that in terms of the prescription contained in the 3rd column as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect. 18. The relevant portion of Notification No.12/2012 relating to Serial No.27, reads as follows: No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. 27 19053100 or 19059020 Biscuits cleared in packaged form, with per kg. retail sale price equivalent not exceeding ₹ 100. Explanation 1.-For the purposes of this entry, retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 5A(1A) of the Central Excise Act, 1944, if the exemption granted under Section 5A(1) is absolute, the manufacturer of such goods shall not pay duty of excise. This is why the Department has taken a stand that the petitioner ought not to have paid excise duty, when the exemption granted under Notification No.12/2012 was absolute. 22. To come to the conclusion that the exemption was absolute, the Commissioner (Appeals) pointed out that there was no necessity for the packages to bear the retail sale price. 23. But we fail to understand the logic behind such a conclusion reached by the Commissioner (Appeals). First of all, the exemption Notification was not a blanket exemption. It was an exemption available to the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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