TMI Blog2014 (12) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 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 that it is a case of applicability of two notifications only and assessee is at liberty to choose anyone notification which is beneficial to. him. In this case, notification 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. when two notifications co-exit simultaneously, the, assessee has the option to choose anyone of the notifications beneficial to him. Hon'ble Apex Court [2001 (3) TMI 971 - SUPREME COURT OF INDIA] 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. In the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notifications. There is no merit in the contentions of applicants that they are eligible to claim rebate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Parliament. The Applicants, now prefer to refer to Serial Entry No.21 of the Table, to the Notification, 2/2008-CE, dated 1.3.2008, whereunder, the same Medicaments of Heading, 3004 of the First Schedule to .the said-Tariff Act, are assessable to the CENVAT, at the rate of 10% ad valorem and accordingly, the total duty rate on Medicaments of Heading-3004 of the First Schedule 'to the said Tariff Act, works out to 10.30%, under the said Serial Entry No.21 of the Table, to the Notification, 2/2008- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 duty rate of pharmaceutical, products at low rate of 4% is to keep the price of Pharmaceuticals as low as possible and therefore it cannot be the intention of the Government to export goods at higher price it being the priority area. Government will always want to keep cost of exportable goods low and therefore it does not fit in to the logic that it was ever intention of the Government to allow export of goods at the Central Excise duty rate of 10%, notwithstanding the rebate but this argument is unreasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held 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 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 24.2.09, 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 Tariff Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 amendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of two notifications only and assessee is at liberty to choose anyone notification which is beneficial to. him. In this case, notification 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has the option to choose anyone of the notifications beneficial to him. Hon'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. Whereas in the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notifications. 8.8. The applicant has further relied upon the case of M/s Arvind Ltd. Vs UOI, which was decided by Hon'ble Gujarat High Court, during the course of personal hearing. The applicant, in this case, paid 4% duty in terms of Notification No.59/2008-CE, while absolute exemption was available under Notification No.29/2004-CE (NT), as amended by Notification No.58/2008-CE. The revenue contended that once the goods were exempted from payment of duty in terms of Notification No.58/2008-CE(NT), they were not required to export the goods on payment of duty @4% in terms of Notification No.59/2008-CE. The Hon'ble High Court has held that when the applicant was given exemption from payment of whole duty and if paid duty at the time of export, the rebate cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess paid amount as duty from the cenvat credit is-to be refunded in the cenvat credit account. 8.10.1 Hon'ble Supreme Court has held in the case of CCE vs. Parle Exports 1988 (38) ELT 741 (SC) that when a notification is issued in accordance with power conferred by statute, it has statutory force and validity and therefore exemption under notification is, as if it were contained in the Act itself. Apex Court has clearly observed that any exemption notification specifying effective rate has to be complied with. In this regard, Hon'ble CESTAT Ahmedabad Bench in its judgement in the case of Mahindra Chemicals vs. CCE Ahmedabad 2007 (208) ELT 505 (T. Ahd.), while relying on above said Apex Court judgement has held that exemption notification has to be construed as if this rate was prescribed by statute and when the legislature has decided to exempt certain goods by notification, the exemption cannot be negated by an assessee by opting for payment of duty. 9. In view of position explained in foregoing paras, Government finds that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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