TMI Blog2014 (12) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @4% or 5% in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance amount of duty paid on the exported goods was treated as excess paid duty and therefore the said amount was allowed to be recredited to their cenvat credit account. 3. Being aggrieved by the said orders-in-original, applicants filed appeals before Commissioner of Central Excise (Appeals) who after considering all the submissions, upheld the impugned orders-in-original and rejected the appeals of the applicants. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of the Central Excise Act, 1944 before Central Government on the following grounds: 4.1 In respect of Medicaments of Heading, 3004 of the First Schedule to the said Tariff Act, the Indian Parliament has floated two different Notifications, namely (1) Notification, 4/2006-CE dated 1.3.06, with Sl. Entry No. 62-C,whereunder, Medicaments of Heading, 3004 of the First Schedule to the said Tariff Act, are chargeable to total Central Excise Duty of 4.12% advalorem and (2) Notification, 2/2008-CE dated 1.03.08, with SI. Entry No. 21, whereunder, same Medicaments of the same Heading 3004 of the First Schedule to the said Tariff Act, are charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Sl. Entry Na. 84 of, the List (1) or Union List of the 7th Schedule to the Constitution of India, 1950), is leviable on, the goods,. manufactured or produced in India and therefore, it is a Tax, on the activity, called as, manufacture of goods, such goods, called, as, excisable goods, specified in the Schedule to the Central Excise Tariff Act, 1985, read with, Section 2(d) of the Central Excise Act, 1944 and accordingly, Central Excise Duty is payable by the Manufacturer on the excisable goods, produced by him, even when supplied as free goods or free samples and under the Central Excise Law, Sale or Purchase or payment for goods, is all immaterial and once Central Excise Duty is paid, even on free goods, which are exported, rebate is to be sanctioned. 4.8 It is not understandable, how the department of Central Excise, came to a conclusion that for sanction of rebate claim, the lower value, appearing in one of the two documents, namely, ARE-1 (Section 4 value) and Excise Invoice (FOB value), is to be taken for computing and sanctioning rebate claim of the applicants. The said contention does not have any authority of law. It is settled question of law that whatever Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 genera 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, 1985 covered under serial entry No. 21 of table to Notification No. 2/08 CE dated 1.03.08 as amended, attracted general tariff rate of duty @10%. At the same time the Notification No. 4/06-CE dated 1.03.06 providing for effective Nil rate of duty was amended vide Notification No. 4/08-CE dated 1.03.08 by inserting Sr. No. 62A, 6213, 62C, 62D 62E for CETH 3001, 3003, 3004, 3005 3006(except 3006.60 3006.92) prescribing effective rate of duty @8%. Thereafter, said Notification No. 4/06-CE was amended vide Notification No. 58/08-CE dated 7.12.08 where under effective rate of duty was reduced to 4%. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 1.03.08 and the same was further reduced to 4% vide amending the said notification vide notification no. 58/2008-CE dated 7.12.08. Further Notification No. 4/06-CE 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. However subsequently reduction in general tariff rate of duty was effected as under: The Hon'ble Finance Minister in his speech white presenting the Union Budget for 2008-09 in the Parliament stated that:- PART-B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 the general tariff rate of duty. 8.4. Government observes that the instructions issued by CBEC regarding assessment of export goods are quite relevant to decide the issue involved in these cases. The instructions contained in para 4.1 of Part-I of Chapter 8 of CBEC Excise Manual on Supplementary Instructions are extracted as under: 4. Sealing of goods and examination at place of dispatch 4.1 The exporter is required to prepare five copies of application in the Faun ARE-1, as per for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, applicant has to assess all goods whether cleared for export or home consumption in a same manner. He cannot assess export goods as higher rate of duty @ 10% and good cleared for home consumption at lower rate of duty @4% or 5%. He has to choose anyone notification and assess all clearance of goods in the same manner even if there are two effective rates of duty as per two notifications. In this case, the situation is different since Notification No. 2/08-CE as amended prescribed duty at General Tariff rate of .10% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
