TMI Blog2013 (7) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided in favour of Revenue. - F. No. 198/21-50/ 2012-RA-CX - 1353-1382/2012-CX - Dated:- 3-10-2012 - Shri D.P. Singh, J. Shri Paresh Mehta, Manager of Company, for the Assessee. ORDER This revision application is filed by Commissioner of Central Excise, Rajkot against the order-in-appeal No. 451-480/2010/Commr. (A)/CMC/Raj, dated 22-10-2010 passed by Commissioner of Central Excise (Appeals) Rajkot with respect to orders-in-original passed by the Deputy Commissioner of Central Excise, Ghandhidham. 2. Brief facts of the case are that M/s. Plastene India Ltd., Survey No. 317, National Highway 8-A, Vill. Nani Chirai, Distt. Kutch (hereinafter referred to as the assessee ) is availing the benefit of the area based exemption Notification No. 39/2001-C.E. (N.T.), dated 31-7-2001. The assessee cleared some of the goods to their buyers situated in Kandla SEZ on payment of Central Excise duty. As clearance to SEZ units was considered as exports, the assessee filed rebate claims before the adjudicating authority. The adjudicating authority observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication. It appears from the plain reading of the above text that the said provision debars a manufacturer who is availing the benefit of Notification No. 39/2001-C.E., dated 31-7-2001 from availing rebate under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended. Accordingly, the said manufacturer is not eligible for rebate under the said notification even in respect of products found to be ineligible for benefit of Notification No. 39/2001-C.E., dated 31-7-2001. In the present case, as the assessee concerned is availing benefit of Notification No. 39/2001-C.E., dated 31-7-2001, he is not eligible for rebate vide Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended, irrespective of the fact that the product/products (in respect of which the rebate claims have been filed) manufactured by him was/were not eligible for exemption under Notification No. 39/2001-C.E., dated 31-7-2001. Hence, the Appellate Authority s observations in this regard appear to be erroneous. 4.2 It is settled law that an exemption notification should be construed strictly. The Hon ble Supreme Court in the case of CCE v. Modi Rubber reported in 2001 (133) E.L.T. 515 (S.C.) has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that if the duty paid on goods are already refunded by way of exemption under the Notification No. 39/2001-C.E. than such goods cannot be said to have duty paid characteristics and therefore rebate shall not be granted on those goods. Our this view is supported by the clarification dated 8-12-2006 bearing F. No. 209/11/2005-C.E.-5 issued by C.B.E. C., wherein it was clearly clarified the issue that whether the duty paid on goods which are subsequently refunded under Notification 39/2001-C.E., can be considered as duty paid in terms of Rule 18 or not, it was clarified in consultation with Law Ministry that the term duty paid used in Rule 18 does not included that portion of duty which is subsequently refunded to the manufacturer. The Law Ministry have further opined that the amount so refunded to the manufacturer is to be treated as an exemption and rebate on the said amount cannot be paid. 5.2 Therefore even the Law Ministry have also opined that if the duty paid on the goods are refunded under the Notification 39/2001-C.E. than the rebate under Rule 18 shall not be admissible on those goods so exported. Therefore in the present case, since the goods so exported have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y installed after cutoff date are not eligible for the exemption Notification 39/2001-C.E. Further the DOF letter No. V/11-17/CCO/Audit/2004, dated 15-11-2006 issued by the Chief Commissioner, Ahmedabad, wherein in point No. 3, it was explained that if a new industrial unit is installed after 31-12-2005 and commence commercial production after 31-12-2005, then such industrial unit would not be eligible to avail exemption under the said notification. Similarly if the commercial production of a particular kind of specified goods had not commenced before 31-12-2005, there again the benefit of the said notification would not be available to such goods. Since it is undisputed that the respondent have installed machinery after cutoff date and it is also undisputed fact that the respondent have the separate account as per the clarification issued by the C.B.E. C. dated 10-7-2008 issued from file number 110/21/2006-CX.3 and also not availed the benefit of the Notification 39/2001-C.E. therefore the goods are well eligible for the rebate of duty so paid since no refund on account of exemption was availed by the respondent. Accordingly the condition (h) of the Notification 19/2004-C.E. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods to SEZ Unit on payment of duty and claimed rebate claims, which were sanctioned by the original authority. Department contested the impugned order-in-original before Commissioner (Appeals) on the ground that respondent was availing benefit of area based exemption Notification No. 39/2001-C.E., dated 31-7-2001, rebate is not admissible. Commissioner (Appeals) vide impugned order-in-appeal upheld the order of original authority and rejected appeal of department. Now, applicant department has filed this revision application on the grounds stated in para 4 above. 9. Department has mainly contested the said order-in-appeal on the ground that condition 2(h) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 prohibits grant of rebate in case export of goods which are manufactured by manufacturer availing the Notification No. 39/2001-C.E., dated 31-7-2001. The-respondent party in their written cross objections have reiterated the findings in the said order-in-appeal and pleaded that rebate claims were rightly sanctioned to them. 9.1 In order to understand the issue, the provisions of condition 2(h) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 may be perused which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Notification. At the same time they claimed rebate on the ground that benefit of Notification No. 39/2001-C.E. has not been availed on exported goods manufactured by plant and machinery after 31-12-2005. Respondent has tried to justify their claim citing the general provision of Notification No. 19/2004-C.E. (N.T.) where under rebate of duty paid on exported goods is granted. Such interpretation is not legally correct since the language and spirit of condition 2(h) is quite clear and it puts embargo on grant of rebate in case of export of goods manufactured by manufacturers availing Notification No. 39/2001-C.E. 9.3 Commissioner (Appeals) has also relied upon clarification in point No. 1 of C.B.E. C. letter F.No. 110/21/2006-CX.3, dated 10-7-2008. The said point No. 1 comment on it contained in para 2 of said letter are reproduced below :- Point No. 1 : Whether the benefit of exemption would be available to goods/products that a unit starts manufacturing after the cut off date for the commencement of commercial production i.e. 31-12-2005. Comments : There would be two situations. First is that where a unit introduces a new product by installing fresh plant, machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be conferred. Hon ble Supreme Court has also categorically held in the case of ITC Ltd. v. CCE Delhi - 2004 (171) E.L.T. 433 (S.C.) that while interpreting statutes, ordinary and natural meaning of words has to be given effect as legislature is deemed to intend and mean what it says. However, in case of ambiguity in language, a reference can be made to legislative intent and object to resolve it. Addition or amendment of words is not permissible and words would be construed as they stand. The statute shall have to be interpreted strictly within terms and language of statute and without intendments. The statute has to be read in simple unambiguous words and no liberal interpretation is permissible. 10. Government notes that the language of condition 2(h) of Notification No. 19/2004-C.E. (N.T.) is quite clear and there is no ambiguity in it. As such, the provisions of notification have to be interpreted as per ordinary and natural meaning of its words and there is no scope of any liberal interpretation. The case laws cited by respondent cannot be made applicable here in view of case laws referred in para 9 above. It has been held by Apex Court that in case of ambiguity in lan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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