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2015 (3) TMI 821 - CGOVT - Central ExciseSanction of partial rebate claim - applicant had been paying duty @ 4% for the goods cleared for home consumption they were required to pay at the same rate on the export goods also - Instead of paying duty @ 4% for export clearances, they paid duty @ 10% - Assistant Commissioner sanctioned cash rebate of duty paid @ 4% on the FOB/ARE-1 value whichever is lower and remaining amount was sanctioned by way of credit in their Cenvat account under Rule 18 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act, 1944 - Held that:- applicants were availing Notification No. 4/2006-C.E., as amended till Feb., 2010 in respect of all clearances made both for home consumption as well as for exports by paying duty @ 4% only. All the rebate claims were being sanctioned accordingly. From March/April, 2010 onwards applicants started paying duty @ 10% in terms of Notification No. 2/2008-C.E. as amended on export goods and claimed rebates of duty paid at higher rate. Applicants apparently opted to pay duty on export clearances at higher rate so as to encash the accumulated Cenvat credit through the said rebate claims. In this case, both the Notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX, dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944. Place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of words “any other place” read with definition of “sale”, cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it cannot be beyond the port of loading of the export goods. It can be either factory, warehouse or port of export and expenses of freight/insurance incurred up to place of removal form part of assessable value. Under such circumstances, the place of removal is the port of export if sale takes place at the port of export. Original authority and appellate authority have rightly sanctioned the rebate claim to the extent of duty paid at effective rate of duty @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended, on the transaction value determined in these cases in terms of Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% as per Notification No. 4/2006-C.E., as amended on the transaction value of exported goods, is to be treated as voluntary deposit made by applicant with the Government. - excess paid amount is to be returned/adjusted in Cenvat credit account of assessee. Moreover Government cannot retain the said amount paid without any authority of law. Therefore, the lower authorities have rightly allowed the re-credit of said excess paid amount of duty in their Cenvat credit account. - no infirmity in the impugned orders and therefore upholds the same. - Following decision of M/s. Belapur Sugar and Allied Industries Ltd. v. CCE [1999 (4) TMI 79 - SUPREME COURT OF INDIA] and M/s. Nahar Industrial Enterprises Ltd. v. UOI [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.
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