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2012 (9) TMI 916 - CGOVT - Central ExciseDenial of rebate claim - respondent cleared export goods on payment of duty @ 10% in terms of Notification No. 2/2008-C.E., dated 1-3-2008 as amended, whereas they were clearing goods for home consumption on payment of duty @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended - original authority sanctioned the rebate claims to the extent of duty paid @ 4% and allowed recredit of balance amount in their Cenvat credit account - Held that:- export goods shall be assessed to duty in the same manner as the goods cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in schedule of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. This C.B.E. & C. Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. The said instruction is issued specifically with respect to sanctioning rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of these instructions. The Notification No. 4/2006-C.E., dated 1-3-2006 as amended prescribed effective rate of duty @ 4%. As such it is not correct to say that it is a case of applicability of two notifications only and assessee, as exporter, is at liberty to choose any one notification which is beneficial to him. In this case, Notification No. 2/2008-C.E. providing for General Tariff Rate of duty and Notification No. 4/2006-C.E. providing for effective rate of duty have the effect of prescribing General Tariff rate and effective rate of duty respectively and therefore they have to be read together as stipulated in para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual. In fact, this confusion has arisen since in this case the General Tariff rate was reduced through Notification when special economic stimulus package was announced in 2008 by Government to deal with ongoing economic recession. There is no merit in the contentions of the respondent that they are eligible to claim rebate of duty paid @ 10% i.e. tariff rate ignoring the effective rate of 4%. - adjudicating original authority was legally right in holding that duty was payable @ 4% in terms of exemption Notification No. 4/2006-C.E., dated 1-3-2006 as amended and rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006. Commissioner (Appeals) has erred in allowing rebate of duty paid in general tariff rate @ 10% in terms of Notification No. 2/2008-C.E., ignoring the above discussed C.B.E. & C. Instructions. 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 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. - original authority has rightly restricted the rebate claim to the extent of duty paid @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E. on the exported goods, is also rightly treated as voluntary deposit made by applicant with the Government Government cannot retain the said amount paid without any authority of law. Therefore, the original authority has rightly allowed the re-credit of said excess paid amount of duty in their Cenvat credit account - impugned order-in-original is not legal and proper and therefore is not sustainable as per law - Decided in favour of Revenue.
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