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2014 (12) TMI 950 - CGOVT - Central ExciseRebate claim - amount of excess duty paid then prescribed rate of duty - Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-CE(NT) dated 06 09.2004 - manufacturers had paid duty on said exported goods @ 10% under Notification No. 2/08-CE dated 01-03-2008 - original authority after following due process of law, held that duty was required to be paid on exported goods at the effective rate of duty @ 4% in terms of Notification No. 4/2006-CE dated 01.03.2006 as amended and sanctioned the rebate claims to the extent of duty payable @ 4% - rejection of rebate claim on free samples - Held that:- Notification No. 4/2006-CE dated 1.03.06 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-CE dated 01.03.2008 and the same was further reduced to 4% vide amending the said notification vide notification no. 58/2008-CE dated 7.12.08. Further Notification No. 4/06-CE-was amended vide Notification No. 4/11-CE dated 01.03.2011 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. There is no merit in the contentions of applicants that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @4% or 5% in terms of exemption notification No.4/06-CE dated 1.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No.4/06-CE dated 1.03.06 as amended, as applicable on the relevant on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. - no foreign remittances was to be received by the applicant, they were not eligible for rebate of duty on (free trade samples). As per foreign trade policy, the exporter is allowed to send the free trade samples, but the admissibility of the rebate claim is to be decided as per relevant provisions of Central Excise Act. No commercial value is mentioned on the export documents and the market value as per records become nil. Since the market price of export goods at the time of exportation is nil, the rebate claim becomes inadmissible in terms of condition No.2(e) of Notification No. 19/2004-CE(NT) dated 6.9.2004. 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. Accordingly, such excess paid amount/duty which is required to be returned to the applicants. Government modifies the order of Commissioner, (Appeals) to the extent discussed above. As such the excess paid amount may be recredited in manufacturer's cenvat credit account - Decided partly in favour of assessee.
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