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TMI Blog1994 (8) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s detailing the grounds of review received from the applicant Collectors. It is not necessary to repeat the same here. 3.The impugned orders-in-appeal, in brief held as follows :- ORDER-IN-APPEAL NO. KVV-479/91, DATED 31-12-1991 Collector of Central Excise (Appeals) held that the word "value" means the F.O.B. value. He further held that the said proviso (vii) only restricted the rebate of duty upto the value of the goods exported; that it should not be interpreted to mean that no rebate of duty should be given if the value of the goods exported is less than the amount of rebate claimed. Accordingly, Collector (Appeals) limited the rebate applied for by M/s. Toshniwal Exports, to the value of the goods Rs. 2,14,680.56 as against their claim for Rs. 2,34,917.72. ORDER-IN-APPEAL NO. GS/738-741/BI/92, DATED 30-9-1992 In these cases, Collector has held that the term "value" should mean the market price or the market value and not the value as declared in the shipping bill. Accordingly, he allowed the claim of M/s. Balsara Hygiene Products (India) Ltd., M/s. Johnson Johnsons (three claims) to the extent of Rs. 8,169.53, Rs. 81,311.28, Rs. 2,97,283/- and Rs. 69,160/- respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 which lays down that the value of the goods at the time of exportation should not be less than the rebate claimed, may be waived. The expression "value" in this Notification means the value of the goods in India at the time of exportation inclusive of duty. Ordinarily, it is difficult to conceive a situation in which the value of the goods sought to be exported is less than the amount of rebate claimed. The Board is, therefore, averse to deleting this condition from the said Notification. If cases arise where the value of the goods in India at the time of their exportation is less than the amount of rebate claimed, the details of such cases may be reported to the Board". The said Notification of 1949 under Rule 12 ibid had similar provisions and its proviso (vii) was in same words as in Notification 197/62 viz. the value of the goods at the time of exportation is, in"(vii) the opinion of the Collector, not less than the amount of rebate claimed"; 7.It would be seen that the latest letter dated 26-3-1993 is rather brusque as compared to the earlier one dated 19-5-1965 and does not indicate whether it supersedes the 1965 Circular. It also does not give any material for anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... replies were received from them and personal hearings were also held except in the case of M/s. Balsara Hygiene Products, who had requested for a decision on the basis of their written submissions dated 25-6-1994. 11.In the case of M/s. GTC Exports, Shri G.B. Yadav, Asstt. Collector, Central Excise, Bombay-I also appeared on behalf of the applicant Collector on 18-4-1994. 12.He stated that "value" at the time of exportation has to be taken as "value" at the time of clearance of the goods determined as per Sec. 4, even if it means that exported goods had been cleared say about two years back [Condition No. (ii)] of the Notification. In support, he relied upon Board's instruction No. 6/10/84-CX. I, dated 29-7-1985. (It is seen that this circular deals with interpretation of term "value" in notification under Rule 8(1) of Central Excises Salt Act). To put differently, Shri Yadav emphasised that expression "at the time of exportation" in the said condition had no significance except that it referred to value of the goods cleared for export as per form AR 4A etc. Shri Yadav also stated that since amending Notification dated 14-10-1993 does not envisage retrospective effect, it wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w has been relied upon by the respondents also. But principles of interpretation are universally known and rather rudimentary and hence no discussion thereon is necessary. 15.Shri Chandrashekhar, Senior Advocate, appearing for M/s. G.T.C. Industries, during the hearing stated that the Supreme Court in the case of Bata - 1985 (21) E.L.T. 9 (SC) has clarified that under Section 4, the value is for determination of duty at the time and place of removal and, he said, it has nothing to do with expression "at the time of exportation" as appearing in the said proviso (vii). He further stated that though Notification dated 14-10-1993 ex facie amended the parent Notification No. 197/62, it was more in the nature of a clarification; that if an earlier interpretation gave words "the value at the time of exportation" as meaning either Present Market Value or `FOB value' then these do not become impermissible by the amendment. In other words if before the amendment of notification a particular interpretation in tune with the amendment was in vogue and which fits in with amending notification such pre-existing interpretation does not become illegal by the amending noti- fication [reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is for levy of duty before clearance from a factory. Reliance on clause 20 of General Clauses Act by the Department is thus mis-placed. 19.Similarly the argument that market value (inclusive of duty) will always be more than the rebate is no reason in itself to adopt Section 4. That the value at the time of export will be more than the rebate is something inbuilt in the notification as clearly elaborated in 1965 circular of the Board itself which states that "the expression "value" in this notification means the value of the goods in India at the time of exportation inclusive of duty. Ordinarily, it is difficult to conceive a situation in which the value of the goods sought to be exported is less than the amount of rebate claimed". 20.As stated above, the definition under Rule 97A of Central Excise Rules, was adopted in M/s. VST case due to somewhat pari materia nature of the two provisions. It is true that Rule 97A speaks of refund, but by definition refund includes rebate of duty on goods exported (Explanation A in Section 11B). Hence the above adoption of definition under Rule 97A was not only legally permissible and sound but also reasonable. Decision by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92, the review proposals were made on 2-3-1994 i.e. after a time lag of more than two years. Likewise, Collector (Appeals)'s order in the case of M/s. Balsara Hygiene and M/s. Johnson Johnsons were received in the applicant Collector's office on 6-10-1992 but review proposals were filed only during Feb., 1994 i.e. much after one and half years of the receipt of the Collector (Appeals)'s orders. These delays have been strongly objected to by the concerned respondents. It seems that the appellate orders had perhaps been originally accepted, but later on receipt of Board clarification dated 26-3-1993 the review was filed; again with considerable delay. This seems rather avoidable irritant to exporters and was rightly agitated during the personal hearing emphasising that reviews were time barred in terms of Sec. 35EE ibid. 24.Next issue that arises for a decision in this case is as to what happens when a rebate claim is more than the market value of the goods exported i.e. whether the rebate can be limited to the market value as held by Collector (Appeals) (who instead of market value has adopted F.O.B. value vide his order-in-appeal No. KVV-479/91, dated 31-12-1991 referred in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 497 (Tri.) = 1983 (2) ETR 238, CCE v. Binny Ltd. - 1987 (31) E.L.T. 722 (T)] what Collector (Appeals) did in the case of M/s. Toshniwal was not only reasonable and logical but permissible exercise of powers under proviso to Rule 12. 27.Lastly, we have to examine whether the amendment dated 14-10-1993 to the Notification 197/62 was only prospective. It is trite law that when an amendment is made to the provisions of the statute, which clarifies, what was implicit in the provisions as they existed earlier, such amendment, though prospective in nature, is to be held to be of clarificatory or declaratory nature. (Chanan Singh v. Jai Kaur - AIR 1970 SC 349; Thiru Manickam v. State of Tamil Nadu - AIR 1977 SC 518; Glindia v. Union of India - 1988 (36) E.L.T. 479 (Bom.), CC v. Shaw Wallace and Co. - 1990 (50) E.L.T. 143 (T); Super Cassettes Industries v. CC - 1992 (58) E.L.T. 105 (T). 28.The position, prior to the amendment of 14-10-1993 is well known now. It is significant that Board's Circular of 1965 which has not been superceded even by Board's instructions dated 26-3-1993, the appellate orders passed by Collector of Central Excise (Appeals) in the cases of M/s. Balsara Hygie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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