TMI Blog2014 (12) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... was amended vide Notification No. 4/11-CE dated 01.03.2011 and the effective rate of duty was enhanced to 5%. On the other hand, the tariff rate of duty for the Chapter heading 3004 was 16% adv. There is no merit in the contentions of applicants that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @4% or 5% in terms of exemption notification No.4/06-CE dated 1.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No.4/06-CE dated 1.03.06 as amended, as applicable on the relevant on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. - no foreign remittances was to be received by the applicant, they were not eligible for rebate of duty on (free trade samples). As per foreign trade policy, the exporter is allowed to send the free trade samples, but the admissibility of the rebate claim is to be decided as per relevant provisions of Central Excise Act. No commercial value is mentioned on the export documents and the market value as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'bar' sought to be imposed on an appellants by the legislature is as regards their foregoing an absolute exemption [viz. exemption from the whole of duty of excise leviable] and paying duty on their own violation. There is nothing in the sub-section to even remotely suggest that the appellants has to compulsorily pay duty at a lesser rate if another exemption notification prescribing a higher rate of duty (obviously less than the Tariff rate) simultaneously exists. It is also well settled by the Supreme Court in the case of CCE Baroda vs. Indian Petro Chemicals - (2002-TIOL-662-SC-CX) that when the benefit of two notifications are available to an assesse, he can choose the one which is more beneficial to him. In view of the above, the assessee cannot be said to have flout the law. 4.2 Section 5A of the Central Excise Act empowers the Central Government to issue notification in official gazette exempting generally either absolutely or subject to such condition as may be specified excisable goods of any specified description from whole or part of the duty. Subsection (1A) introduced with from 13th May, 2005 is applicable when the exemption is provided from payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the samples are not meant for sale-in retail. They are meant for giving free to doctors as promotional measure. This does not mean that the market price of the product is nil. Section 4(1)(a) provides for determination of value. It provides for levy of duty on transaction value when the goods are sold in the market. In. case goods are not sold in the market, section 4(1)(b) comes into operation and the value is required to be determined in terms of the Valuation Rules. It is submitted that the basic thrust of the rule is to determine the value as close as possible to the value under section 4(1)(a). Thus, the rules are meant to determine the value closer to sales price of the product. In view of this, it is submitted that the value indicated for custom purpose- and the sales price is the market value, of the product and therefore the observation of the Assistant Commissioner that it has no market value is devoid of any merits. Hence, it is submitted that the refund claim shall be granted. 4.7. It is submitted that if the said amount is denied as rebate, then the same should be allowed to be taken back as Cenvat credit in the Cenvat credit account of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) upheld the impugned Orders-in-Original. Now, the applicants have filed these revision applications against the impugned Orders-in-Appeal on the grounds stated above. 8. The applicants have contended that both the said notifications have approval of Parliament and therefore they are at liberty to avail any notification which ever they find beneficial to them. Therefore they have claimed to be eligible for rebate of duty paid on export goods @10% in terms of Notification No. 2/08-CE dated 1.03.08 as amended. 8.1 It is observed that Central Government issued Notification No. 2/08-CE dated 1.03.08 which has an effect of reduction in general rate of Central Excise duty on various products from, 16% to 14%. Subsequent amendment by Notification No.58/08-CE dated 7.12.08 reduced the general rate from 14% to 10%. Vide Notification No. 4/09-CE dated 24.02.09, it was further amended to reduce the general rate of duty from 10% to 8%. Finally the Notification No.2/08-CE was amended by notification No. 6/10-CE dated 27.02.10 to enhance the said general rate of duty from 8% to 10%. Pharmaceutical drugs and medicines falling under Chapter 30 of First Schedule to Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general effective rate for all goods of Chapter 30 is now 8%. However, certain specified items such as lifesaving drugs continue to be fully exempt. Excise duty has been fully exempted on Anti AIDS drug , ATAZANA VIR, and bulk drugs for its manufacture. The Joint Secretary (TRU) CBEC has made it amply clear that reduction in General Tariff Rate has been carried out by Notification and therefore there could be a possibility of same item being covered by two notifications and directed that the rate beneficial to assessee may be extended. However, in present case the issue involved is not exactly regarding applicability of two notifications for payment of duty but rebates of duty paid at tariff rate or effective rate is to be allowed. 8.3 It is felt that it is necessary to go into the background to find out the reason behind the issue of' these two notifications. Notification No. 4/2006-CE dated 1.03.06 when issued, originally did not prescribed any concessional rate of duty to medicaments of chapter Heading 3004 and a concessional rate of duty @8% was prescribed by amending the said notification vide notification no. 4/2008-CE dated 01.03.2008 and the same was further r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... driven pumps for handling- water and paraxylene. Further, the Hon'ble Finance Minister in his speech while presenting the Union Budget for 2010-11 in the Parliament stated that: PART- B INDIRECT TAXES 142. Unlike the time I presented the last Budget, symptoms of economic recovery are more widespread and clear-cut now. The three fiscal stimulus packages that the Government introduced in quick succession have helped the process of recovery significantly. The improvement in our economic performance encourages a course of fiscal correction even as the global situation warrants caution. Therefore, I propose to partially roll back the rate reduction in Central Excise Duties and enhance the standard rate on all non-petroleum products from 8 per cent to 10.per cent ad valorem. From above, it is noted that intention of legislature behind said two notifications is best revealed in the above said budget speeches of Hon'ble Finance Minister. It is quite clear that Notification No. 2/08-CE dated 1.3.08(14%) and subsequent amending Notification No. 58/08-CE dated 7.12.08 (10%), 4/09-CE dated 24.02.09(8%) and 6/10-CE dated 27.02.10(10%), were issued to reduce/alter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 2/08-CE as amended provided for General tariff rate of duty and Notification No. 4/06-CE as amended provided for effective rate of duty and they have to be strictly construed.as such. Therefore they have to be read together as stipulated in Para 4.1 of Part-I of Chapter 8 of CBEC 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. Normally changes in General tariff rate are carried out through Finance Bill / Act. Government, therefore is of the view that duty was payable @4% on the export goods also and rebate cannot be granted on the duty paid in excess of effective rate prescribed in the Notification No. 4/06-CE dated 1.03.06 as amended, as stipulated in the above said CBEC Instructions. 8.5. Further, it is also noticed that applicant are clearing goods for home consumption on payment of duty @4% or 5% in terms of Notification No.4/06 CE as amended. The above said CBEC Instructions state that export goods are to be assessed in the same manner as the goods for home consumption. So, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Apex Court has categorically held that in such a situation assessee has option to choose anyone notification. Apex court has not stated that assessee can avail both the notifications simultaneously. a. Whereas in the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notification. The above said judgement is not in the context of sanctioning of rebate claims in terms of rule 18 of Central Excise Rules 2002 read with Notification No. 19/04-CE(NT) dated 06.09.2004. The cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification/eligibility of claimant CE(NT) dated 6.09.04. The cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification/eligibility of claimant. Hon ble Supreme Court in para 10 of the judgement in case of Escorts Ltd. vs. CCE Delhi-II 2004 (173) ELT 113 (SC) observed, which inter alia stipulates Circumstantial flexibility , One additional or different fact may make a world of difference between conclusion of two cases. Disposal of two cases by blindly placing reliance on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No.4/06-CE dated 1.03.06 as amended, as applicable on the relevant on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. 9.1 Government finds that the original authority also rejected the rebate claim of duty paid on free samples Government observes that these samples were not meant for sale, so, they did not have any commercial value and no foreign remittances were to be received by the applicant. Government observes that the rebate/drawback etc. are export oriented schemes to neutralize the effect of the domestic duties on the exported goods to make them competitive in international market to earn more foreign exchange for the country. 9.2 As in the instant case, no foreign remittances was to be received by the applicant, they were not eligible for rebate of duty on (free trade samples). As per foreign trade policy, the exporter is allowed to send the free trade samples, but the admissibility of the rebate claim is to be decided as per relevant provisions of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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