TMI Blog2013 (5) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... mended notification would apply to all exports made after 17.9.2007 stating that in case of export of goods which are manufactured by a manufacturer availing the notifications of the Government of India No.39/99-Central Excise, dated the 31st July, 2001 and some more as specified the rebate shall not be admissible under this notification. It is undisputed that the petitioner is covered by such condition since the petitioner claims benefit of Exemption Notification No.39 of 2001. In that view of the matter, the Appellate as well as Revisional Authorities committed no error. Order beyond the scope of the show cause notice - Held that:- It is true that reference to this objection was in relation to the clarification issued by CBEC in this respect. However, the petitioner itself was acutely conscious of the amendment in the Notification No.19 of 2004. It was precisely for this reason that at the very outset, in the reply to the show cause notice itself, the petitioner raised the contention that such amendment would not apply to the exports, which may have been made after 17.9.2007 but clearance of which was made from the factory for export before such date. Thus the issue whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al conditions contained in the said Notification, to which we would refer to at a later stage. 3.3 The petitioner cleared its goods manufactured in the unit situated in Kutch region for export during the period between 24.8.2007 and 31.8.2007. Admittedly such goods though were cleared for export after following conditions mentioned in the Exemption Notification No.19/2004, the actual export took place on or around 23.9.2007. In the meantime, on 17.9.2007 the Government of India issued amendment Notification No.37/2007 amending the Notification No.19/2004 and added condition (h) in paragraph 2 of the said Notification. By virtue of such amendment, rebate was made inadmissible in case of exports of goods by the manufacturers availing benefits under various Notifications mentioned therein including the Kutch area Exemption Notification No.39/2001. Central controversy in the present petition is whether to the exports made by the petitioner, after such amendment was made, such condition could be applied even though the goods were cleared from the factory for export before such date. 3.4 To complete the sequence of events, upon finally exporting the goods, the petitioner filed two re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (254) E.L.T 551 (Guj.) struck down the circular. Such decision has also been upheld by the Supreme Court. Thereupon, the Adjudicating Authority proceeded to examine the petitioner s refund claims. By an order dated 3.12.2010, the Adjudicating Authority granted the rebate and passed the following order:- 13.(i) I hereby sanction the rebate of Rs.2,25,35,758/- (Rupees two crore twenty five lakhs thirty five thousand seven fifty eight only) in cash to M/s. Welspun Corp. Limited (earlier known as M/s. Welspun Gujarat Stahl Rohren Lted.) Vill:Varsamedi, Taluka Anjar (Kutch), Gujarat under Section 11B of the Central Excise Act, 1944 read with Rule 18 of the Central Excise Rules, 2002. (ii) I also allow M/s. Welspun Corp. Limited, Vill: Varsamedi, Taluka Anjar (Kutch), Gujarat to take a credit of Rs.13,73,922/-)Rupees thirteen lakhs seventy three thousand nine hundred twenty two only) in their PLA account. 6. Against such order of the Adjudicating Authority, Department preferred appeal before the Appellate Commissioner. It is undisputed that in such appeal, the Department pressed in service the amended Notification dated 17.9.2007 and strongly urged that by virtue of such am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- Rule 18. Rebate of Duty- Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions and limitation, if any, and fulfillment of such procedure, as may be specified in the notification. The above statute very clearly stipulates that where any goods are exported, the Central Government may by notification grant rebate of duty paid on such excisable goods subject to condition and limitation and fulfillment of procedure as prescribed in the notification. So the fundamental condition for grant of rebate is that duty paid goods are exported out of India subject to compliance of condition or limitation and procedure prescribed in the notification. The Not.No.19/04-CE(NT) dated 6.9.04 issued under Rule 18 ibid prescribes the condition/ limitation and procedure to be complied with for becoming entitled for the grant of rebate claims. The said notification was amended vide Not.No.37/07-CE(NT) dated 17.09.07 and condition 2(h) was added in the said notification. The said condition 2(h) is as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has preferred this petition. 10. Learned counsel Mr. Modh for the petitioner raised following two contentions:- 11.1 First contention was that the amendment dated 17.9.2007 in the Notification No.19/2004 would not apply to the petitioner in the facts of the present case. His contention was that once the goods were cleared for export from the factory of the petitioner, right to claim rebate accrued. Such accrued right cannot be affected by any subsequent change in the Exemption scheme. In essence, therefore, his contention was that the amendment Notification dated 17.9.2007 would not adversely affect the petitioner s claim of rebate on goods manufactured and cleared from the factory for export before such date. 11.2 In support of his contentions, counsel relied on following decisions: 1) On the decision of the Calcutta High Court in the case of Rasoi Limited vs. Union of India reported in 2004(176) E.L.T. 101(Cal.) 2) On the decision of the Division Bench of this Court in the case of Dipak Vegetable Oil Industries Ltd. vs. Union of India reported in 1991(52) E.L.T. 222 (Guj.) 12. Counsel s second contention was that the show cause notice only stated that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h) in paragraph 2 was inserted by amendment Notification No.37/2007 dated 17.9.2007. The petitioner made exports of goods after 17.9.2007 but claimed rebate on the ground that such goods were cleared from the factory premises for export before 17.9.2009. Short question, therefore, is whether to such export, the amended notification can be applied. 16. Exemption Notification No.19/2004 has been issued under the powers conferred under Rule 18 of the Rules. The said Rule provides that where any goods are exported, Central Government may, by notification grant rebate of duty paid on such excisable goods or duty paid on material used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be prescribed in the notification. Thus, the rebate of duty is envisaged upon the exports of goods. Under such circumstances, the Central Government may grant rebate of duty paid by issuing appropriate Notification. Such claim of rebate, however, would be subject to conditions or limitations that may be contained in the Notification and also upon fulfillment of the procedure, as may be specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rebate claim only upon export of goods. Clearance of such goods from the factory for export directly is just one of the conditions subject to which such refund/rebate claim could be granted. Fulfillment of such condition,however, cannot be equated with the right to claim rebate. Such right is hedged by requirement of fulfilling of conditions and limitations contained in the Exemption Notification and all the requirements of fulfilling the procedure. Mere fulfillment of such conditions and limitations and following the procedure would not give right to a person to claim rebate in absence of the fundamental requirement of export of goods. The rebate claim arises out of the export of goods. The conditions, limitations and the procedural requirements are additional requirements to be fulfilled by an exporter in order to seek actual rebate. 20. Above observations gather support from Rule 18 of the Rules, which permits Central Government, by issuing Notification, to grant rebate of excise duty upon the export of goods. Exemption Notification No.19/2004, as noted above, has been issued in exercise of powers conferred under the said Rule 18. 21. This also gets support from Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vessel had sunk after it moved out of the territorial waters. This Court said: When the ship got clearance and moved out of the territorial waters, the export was complete.... But the expression taking out to a place outside India would also mean a place in high seas. It is beyond the territorial waters of India. High seas would also mean a place outside India, if it is beyond the territorial waters of India. Therefore, the goods were taken out to the high seas outside territorial waters of India, they will come within the ambit of expression taking out to a place outside India . Indubitably the goods had been taken out of India. 5. The emphasis in the judgment afore-mentioned is on the movement of the goods outside the territorial waters of India. It is then that an export may be said to have taken place. In the instant case, the said cargo was destroyed when the vessel sunk within the territorial waters of India. There was, therefore, no export of the said cargo. Accordingly, no duty drawback was available in respect of the said cargo. 23. We are of opinion that the claim for rebate under Exemption Notification No.19/2004 would accrue upon actual export of goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that since the petitioner was availing benefit of Kutch Area Exemption Notification, it would not be entitled to rebate. It is true that reference to this objection was in relation to the clarification issued by CBEC in this respect. However, the petitioner itself was acutely conscious of the amendment in the Notification No.19 of 2004. It was precisely for this reason that at the very outset, in the reply to the show cause notice itself, the petitioner raised the contention that such amendment would not apply to the exports, which may have been made after 17.9.2007 but clearance of which was made from the factory for export before such date. Thus the issue whether such amendment would apply in above set of facts was very much at large before the Adjudicating Authority. In any case, the question is application of a condition in the Notification. No disputed facts arise in the process. It is not even the case of the petitioner that any disputed facts are involved for examining this legal issue. Notifications are in the nature of delegated legislation. The question, therefore, is Rule amended or unamended, should apply to admitted set of facts, is pure question of law. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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