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TMI Blog2014 (12) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... after following due process of law, held that duty was required to be paid on exported goods at the effective rate of duty @ 4%/5% in terms of Notification 14/2006 dated 01.03.2006 as amended and sanctioned the rebate claims to the extent of duty payable @ 4%/5%. 3. Being aggrieved by the said orders-in-original, applicants filed appeal before Commissioner of Central Excise (Appeals), who upheld the impugned order-in-original and rejected the appeal of the applicants. 4. Being aggrieved by the impugned orders-in-appeal, the applicant have filed these revision applications under Section 35EE of the Central Excise Act, 1944 before Central Government on the following common grounds: 4.1 It is a question of fact that as per Serial Entry No.62-C of the Table, to the Notification 4/2006-CE., dated 1.3.2.006, Medicaments, of Heading; 3004 of the First Schedule to the said Tariff Act, are assessable under MRP Based Valuation, under Section 4A of the Central Excise Act, at the total Central Excise Duty rate of 4.12% (5.15% as amended), the said Tariff Notification, has been issued by the Central-Government, under Section 5-A(1) of the Central Excise Act and has been approved by the Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Applicants invite attention to Chapter 9 of the Supplementary Instructions, issued by the Central Board of Excise & Customs on 1.9.2001, which are valid today and wherein, the Central Board of Excise & Customs has clearly maintained that the expression "Refund" under Section 11B of the Central Excise Act also means Rebate of duty paid on exported goods in terms of the Para 7.2 of the said Chapter 9 of the Supplementary instructions , a Refund or Rebate is always to given only by a Cheque and the Adjudicating Authority does not have any jurisdiction to allow Rebate by way of CENVAT Credit in the Cenvat Credit Account of the applicants. In these premises,, the Order in-original of the Original Authority, granting Rebate under Rule 18 of the Central Excise Rules 2002, by way of CENVAT Credit is bad in Law and requested to direct the original authority to refund the balance amount of Rebate by Cheque with Interest at appropriate rate under Section 11B of the Central Excise Act read with Section 11BB. 4.5 The respondent has also argued that from the Budget speech of the Finance Minister, as cited by him in his Order -in- Appeal, the purpose and object of keeping d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urers had cleared said goods for home consumption on payment effective rate of d 4% upto 28.02.11 and @ 5% w.e.f. 01.03.11 under Notification No. 4/2006-CE dated 01.03.2006 as amended. The original authority after following due process of law held that duty was required to be paid on exported goods at the effective rate of duty @ 4%/5% in terms of Notification No. 4/2006 -CE dated 01.03.2006 as amended and sanctioned the rebate claims to the extent of duty payable @ 4%/5%. The Commissioner (Appeals) upheld the impugned Orders - in - original. Now, the applicants have filed these revision applications against the impugned Orders-in -Appeal on the ground stated above. 8. The applicants have contended that both the said notifications have approval of parliament 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 exported 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een carried out by notification. The other ad volorem rates of 24%, 12% and 8% have been retained. 2.2 Since the reduction in the general rate has been carried out by notification, the possibility of the same product/ item being covered by more than one notification cannot be ruled. In such a situation, the rate beneficial to the assessee would have to be extended if he fulfils the attendant conditions of the exemption. 3. Drugs and Pharmaceuticals 3.1 Excise duty or drugs and pharmaceuticals falling under Heading Nos. 3001, 3003 (export Menthol crystals), 3004, 3005 and 3006 (except 3006 60 and 3006 92 00) has been reduced from 16% to 8%. Thus the general effective rate for all goods of Chapter 30 is now 8%. However certain specified items such as life saving drugs to continue to be fully exempt. Excise duty has been fully exempted on Anti - AIDS drug ATAZANAVIR, and bulk drugs for its manufacture " The Joint Secretary (TRU) CBEC has made it amply clear that reduction in General Tariff Rate has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of which was the sharp reduction in the ad valorem rates of Central Excise Duty for non-petroleum products by 4 percentage points across the board on 7th of December, 2008 and by another 2 percentage points in the mean Cenvat rate on the 24th February, 2009. 117 ............. 118: .......... 119. ............ 120. With .............further convergence of central excise duty rates to a mean rate - currently 8 per cent. I have reviewed the list of items currently attracting the rate of 4 per cent, the only rate below the mean rate. There is a case for enhancing the rate on many items appearing in this list to 8 per cent, which I propose to do, with the following major exceptions: food items; and drugs, pharmaceuticals and medical equipment. Some of the other items on which I propose to retain the rate of 4 per cent are paper, paperboard& their articles; items of mass consumption such as pressure cookers, cheer electric bulbs, low priced footwear, water filers / purifiers, CFL etc.: power driven pumps for handling- water and paraxylene." Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clarified that this value may be less than, equal to or more than the FOB value indicated by the exporter on the Shipping Bill. The plain reading of said para, reveals that the export goods shall be assessed to duty in the same manner as the good cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in schedule of Central Excise Tariff Act, 1985 read with any exemption notification and /or Central Excise Rules, 2002. The CBEC instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. While sanctioning rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of the instructions. As explained above, Notification No. 2/08-CE dated .1.03.08 as amended prescribed General Tariff rate of duty @10% which was in fact brought down from 16% to 14% and then to 8% and finally to 10% by different amending notifications. The notification No. 4/06-CE dated 1.03.06 as amended prescribed effective rate of duty from initial rate of 0% to 8%, 8% to 4% and finally to 5% by different amending notifications. As such it is not correct to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Instructions and they have to comply with the same. Hon'ble Supreme Court has held in the case Paper Products Ltd. vs. CCE 1999 (112) ELT 765 (SC) that circulars issued by CBEC are binding on departmental authorities; they cannot take a contrary stand and department cannot repudiate a circular issued by Board on the basis that it was inconsistent with the statutory provision. Hon'ble Apex Court has further held that department's actions have to be consistent with the circulars, consistency and discipline are of far greater importance than winning or losing court proceedings. In view of said principles laid by Hon'ble Supreme Court, Government upholds the applicability of above said CBEC Instructions in this case. 8.7 Applicant has relied upon number of case laws to the proposition that it was upto the assesse to choose a notification which is most beneficial to him. Government of India notes that in cases cited namely: * CCE Baroda vs. India Petro Chemicals 1997 (92) E. L.T 13 (SC) * HCL Ltd. vs. CC New Delhi 2001 (130) ELT 405(SC) * M/s Arvind Ltd. Vs UOI 2014 (300) ELT 481 (Guj.) Hon'ble Supreme Court has held that when two notifications co-exit simul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent fact may make a world of difference between conclusion of two cases. Disposal of two cases by blindly placing reliance on a decision, not proper." In para 11 of said judgment following observations are made :- "11. The following words of Lord Denning in the matter of applying precedents have become locus classicus Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect in deciding such cases. One should avoid temptation to decide cases by matching the colour of one case against the colour of another. Therefore, it needs to be reiterated that each one of the above citation has different set of facts, pertaining to manufacturing of goods of different subheadings, following different Notifications, choosing different beneficial schemes and changing thereof in between a given financial year, thereby leading to different question of law. 8.10. Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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