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2015 (7) TMI 136 - HC - Central ExciseDenial of rebate claim on export of goods - whether payment of CESS would constitute duty and eligible for refund claim - Automobile Cess, Education Cess on Automobile Cess and Secondary and Higher Education Cess (for short SHE Cess) on Automobile Cess - Rule 18 of central excise Rules, 2002, read with notification No.19/04 -CE(NT) dated 06.09.2004 - Held that:- For purpose of levy of Automobile Cess, "value" as defined in section 9(1) of Industries (Development and Regulation) Act, 1951 would not apply insofar as it applies to the valuation of goods to be made for the purposes of computation of Automobile Cess, Education Cess on Automobile Cess, SHE Cess on Automobile Cess to be levied and calculated as if it was excise duty as prescribed under Rule 3 of Automobile Cess Rules, 1984 - Explanation-I of the Notification 19/2004 acquires significance, whereunder the word "duty" has been defined for the purposes of said Notification to mean duties of excise collected under the enactments enumerated under Explanation-I. As to whether Automobile Cess, Education Cess on Automobile Cess and SHE Cess on Automobile Cess levied pursuant to levy of excise duty and paid on the goods exported can also be construed as duty and entitled to rebate or the authorities were right in rejecting the rebate claimed by petitioner on the ground that it is not a duty specified in Explanation-I to the notification or Cess levied and paid falls outside the purview of exemption Notification is the issue in question. It would indicate that the phrase "duties of excise" and "duty of excise" were used interchangeably namely sometimes in plural and sometimes in singular i.e., prior to 12.05.2000. However, said phraseology came to be substituted by new phrase viz., 'CENVAT' with effect from 12.05.2000. In order to overcome the difficulty of replacing these words in entire Central Excise Act, 1944, Section 2A was introduced with effect from 12.05.2000 by Finance Act, 10/2000 whereunder expression "duty", "duties", "duty of excise" and "duties of excise" was to be construed to include a reference to "Central Value Added Tax (CENVAT)". Thus, intention of the legislature is clear and an unambiguous. An exporter in order to claim the benefit flowing from the notification No.19/04 -CE (NT) dated 06.09.2004 will have to establish that the rebate claimed is in respect of the "duty" collected under the enactments enumerated thereunder and in the instant case, petitioner has clearly established that such duty has been levied and collected under the Central Excise Act, 1944 together with Cess. In view of the discussion with regard to Rule 3 of Automobile Cess Rules, 1984 it has to be necessarily held that provisions of Central Excise Act relating to levy and collection of duty as applicable would also be applicable to Cess levied under the Automobile Cess Rules, 1984 which came to be levied on the goods exported by petitioner by virtue of notification No.923(E) dated 28.12.1983 which came to be superseded by SO No.247(E) dated 22.03.1990 and therefore it has be necessarily held that Automobile Cess collected is "duty of excise" in terms of the provisions of the Central Excise Act, 1944 and thereby, Automobile Cess, Education Cess on Automobile Cess and SHE Cess on Automobile Cess is a "duty of excise" and is part of the duties paid by the petitioner and thereby petitioner is entitled to the rebate. - impugned order No.401- 404/2013 dated 20.05.2013 - Annexure - Z passed by fifth respondent would not be sustainable and petitioner would be entitled to the relief sought for. - Decided in favour of assessee.
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