TMI Blog2009 (12) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... hi-II. 2. Brief facts of the case are that the respondent M/s. Panacea Biotech Ltd., B-1/E-12, Mohan Co-operative Industrial Estates, Mathura Road, New Delhi registered with Central Excise Department for the manufacture of P P Medicines falling under Chapter sub-heading 30.04 of the first Schedule to the Central Excise Tariff Act, 1985 had filed 48 claims of rebate of duty paid on the exported goods from Cenvat Credit Account. The Assistant Commissioner, Central Excise, Division-VI New Delhi vide his orders-in-original held that applicant is eligible for the rebate claim only to extent based on the actual Bank Realization of Foreign Remittance. The remaining claim of duty paid in excess of duty amount payable at the actual bank realization which is the transaction value, was allowed re-credit in Cenvat Account. 3. Aggrieved by these orders-in-original, the respondent filed appeals with the Commissioner (Appeals) who allowed the appeals and held that the respondent is entitled to full rebate in cash irrespective of the Bank Realization which was lowered due to fluctuations in the exchange rate. 4. Aggrieved by this order-appeal, the applicant Commissioner has filed this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voice, and this value is relevant for the purpose of Rule 12 and 13 of Central Excise Rules, 1944 (present Rule, 18 19 of Central Excise Rules, 2002). Therefore, the value of export goods for the purpose of Central Excise is the one under Section 4 of the Act, i.e. transaction value . Therefore, any amount paid in excess of duty payable as per transaction value is to be refunded, but the rebate in cash is to be allowed only to the extent of actual realization, i.e. transaction value , as clarified by the Board s Circular. 5. A Notice under Section 35EE was issued to the respondent who filed their counter reply vide their letter dated 13-5-09. Their main arguments are as under : 5.1 We submit that the revision application filed by the Commissioner is essentially relying upon the decision of the Government of India in the case of Re : Bhagirth Textiles Ltd. - 2006 (202) E.L.T. 147 (G.O.I.). In this context, it is submitted that by now it is well settled that an exporter is eligible to claim rebate of the actual amount of Central Excise Duty paid on the goods exported. Once it is established that the amount of Excise Duty has been paid on the goods exported, rebate cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Bhagirth Textiles Ltd. is concerned, it is to be submitted that in this case also, the Government of India did not reduce the amount of rebate claimed. The Government of India no doubt held that the rebate is permissible for the actual amount of excise duty paid by the exporter in that case. It is only that a part of the claim was allowed by the government of India in the final para of the order by way of Cenvat Credit. This might have been allowed because it did not affect the exporter in that particular case and it is also possible that the exporter himself might have asked for this amount of rebate by way of Cenvat Credit. However, the Government of India has nowhere laid down a specific law in Bhagirth Textiles Ltd. that a part of the rebate claim must be sanctioned by way of Cenvat Credit only. 5.3 M/s. Panacea Biotec Ltd. would like to submit that there is no essential difference between the view taken by the Government of India in Bhagirth Textiles Ltd. and the law laid down by the Hon ble Tribunal in several cases. The essence is the same. Namely, that the rebate is to be sanctioned for the full amount of duty which is actually paid on the goods exported a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation in the foreign exchange rates and therefore ordered the total rebate claim is to be paid in cash. 9. The respondent have mainly contended that exporter is eligible for the rebate of actual amount of Central Excise duty paid of exported goods. They further pleaded that the argument regarding receipt of lesser bank realization from buyer than the amount actually invoiced for export of medicines is not at all relevant. There is no authority for sanctioning part rebate claim in cenvat credit account. In this regard, it is relevant to go through the above said Government of India Order. Facts of the said case are that Shri Bhagirth Textiles Ltd., Mohali filed 15 rebate claims for Rs. 3,650,905/- in respect of duty paid on goods cleared for export which was sanctioned by the rebate sanctioning authority i.e. Asstt. Commissioner. During the scrutiny of the Bank realization certificate, it was noticed that the exporter had realized lesser amount i.e. sale proceeds as compared to the value shown in ARE-1. The differential value of Rs. 1,704,286/- involved duty of Rs. 2,35,192/- was sought to be recovered by issuing a show cause notice. The adjudicating authority confirmed the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a product is not notified under Section 4A and there is no tariff value fixed for it under Section 3(2), it has been to be assessed according to its transaction value determined under Section 4 as substituted with effect from 1-7-2000. 8.4 In the instant case it is not the case of Revenue that the seller and buyer of the goods are related person. Govt. therefore, would agree with the contention of the applicant Commissioner that the excise duty on the goods should have been paid on transaction value as defined under Section 4(3)(d) of the Central Excise Act, 1944. C.B.E.C. vide their Circular No. 203/37/96-CX., dated 26-4-96 have also clarified that AR4 value should be determined under Section 4 of the Central Excise Act, which is required to be mentioned on the invoices issued under Rule 52A of the Central Excise Rules, 1944. In the instant case the respondents themselves have admitted in their letter of cross objection dated 26-5-2005, that they have paid Central Excise duty on CIF value of the impugned goods for purpose of claiming rebate under Rule 18 of the Central Excise Rules, 2002. Govt. therefore, would agree with the contention of the Applicant Commissioner that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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