TMI Blog2015 (1) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... Following decision of assessee's own previous case [2015 (1) TMI 666 - GOVERMENT OF INDIA] - the rebate of duty paid on goods exported prior to 02-07-2011 is admissible - Decided partly in favour of Revenue. - F.No. 198/111/13-RA - 231/14-cx - Dated:- 13-5-2014 - Shri D.P. Singh, Joint Secretary ODRER This revision application is filed by Commissioner of Central Excise Service Tax, Lucknow against the Order-in-Appeal No. 06-CE/LKO/13 Dated 11-09-2013 passed by the Commissioner of Central Excise (Appeals), Lucknow with respect to Order-in Original passed by the Assistant Commissioner of Central Excise, Division farrukabad M/s P.R Chemicals, UP is the respondent in this case. 2. Brief facts of the case are that M/s. P.R Chemicals, Kannauj having Registration No. ABCPG3993KXM001 engaged in the manufacture and clearance of `Pan Raj' brand `Pan Masala containing Tobacco, commonly known as Gutkha falling under heading No. 24039990, cleared 27 consignment of Gutkha for export under 27 ARE1s dated between 07-06-2011 to 01-07-2011. Out of 27 consignments 23 left India after 02-07-2011 as detailed below:- ANNEXURE- I P.R Chemicals, Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04-07-2011 450721, 20 73 27-06-2011 04-07-2011 450721 21 74 27-06-2011 04-07-2011 450721 22 75 01-07-2011 12-07-2011 450721 23 76 01-07-2011 12-07-2011 450721 24 77 01-07-2011 23-07-2011 450721 25 78 01-07-2011 12-07-2011 450721 26 79 01-07-2011. 12-07-2011 450721 27 80 01-07-2011 11-07-2011 120192 11598553 The party filed claim rebate claims of ₹ 1,15,58,553/- for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minister of Environment and Forests. Central Board of Excise and Customs (CBEC) too vide their letter F.No. 528/69/2011-STO (TU) dated 30-08-2011 reiterating the provisions of the above rules clarified that the export of Gutkha in plastic sachets/plastic material in any form would be in contravention of Plastic Waste (Management and Handling) Rules, 2011. 4.3 The Commissioner (Appeals) erred in holding that the said notification and circular cannot be made applicable with retrospective effect unless or otherwise specified therein. The clarification issued vide letter F.No. 528/69/2011-STO (TU) dated 30-08-2011 of the CBEC itself directed to finalize all the past cases in the light of the clarification and enjoined upon all the Chief Commissioner and Commissioners to issue suitable; standing orders/public notices in respect of all cases relating to past, present and , future. Following the directions the Central Excise Commissionerate Lucknow too issued Trade Notice No. 19/11 dated 14-09-2011. The letter dated 30-08-2011 of CBEC in para 6 had expressly given retrospective effect to the clarificatidn issued therein. 1 1 4.4 Even if it is assumed without admitting that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the applicant which would have resulted in sanction of amount of ₹ 1,15,58,553/ However, adopting a deliberate, diversionary and delaying tactics, the Commissioner of Central Excise, Lucknow, who himself has accepted the GOI order mentioned above, had chosen to file a revision application against the impugned order of the Commissioner (Appeals), Lucknow. It is worth noticing that the GOI order was for the same product for export to Afghanistan and therein 53 rebate claims were allowed in our own case. The GOI order, when had already been accepted by the Commissioner of Central Excise, Lucknow, there was no point on the part of the same, Commissioner of Central Excise, Lucknow to challenge another order of the Commissioner (Appeals), Lucknow, when facts and circumstances of the case and all material things were one and the same. 5.2. In that order, the Government had rejected the application of the Revenue and has observed that the applicant had rightly paid the duty on pro-rata basis in terms of proviso to sub-rule(3) of rule 6 of Pan Masala Racking Rules, 2008. The Government did realize that even the ban ordered by Hon'ble Supreme Court, and notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.02.2011 clearly prescribes under Rule 2 that provisions of Rule 5 and 8 shall not apply to the manufacturers of carry bags exclusively for export purpose by export oriented manufacturing units against an order of export received by the owner or occupier of the concerned manufacturing unit. If the gutkha was contained in a plastic sachet and was being manufactured for export, had it contravened any provisions of the Environment (Protection) Act, 1986, (29 of 1986), read with provisions of SO issued on 04.02.2011 by the MoE F, then it ought to have been seized and confiscated by the Central Excise Authorities of Farukhabad and Lucknow. But nothing of the sort was done on their part as they were fully aware that in our own case the Government had earlier already approved 53 rebate claims. The exporter in this case was P.R. Chemicals, and he was not the manufacturer of packaging material, i.e. the sachet. When the manufacturing of sachet was allowed only then P.R. Chemicals purchased it, packed the gutkhaa and exported the gutkha to Afganistan. 5.4. The CBEC instruction, dated 30.08.2011, or the trade Notice No. 19/2011, dated 14.08.2011, of Lucknow Commissionerate, had no releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusively for export purposes by export oriented manufacturing units against an order for export received by the owner or occupier of the concerned manufacturing unit. Rule 3 (b) defines carry bag to mean all plastic bags used to carry commodities including self carry features . The said definition of carry bags in rule 3 (b) was amended on 02-07-2011 as bags made from all plastic material -used for the purpose of carrying or dispersing commodities but do not include bags that constitute or form an integral part of packaging in which goods are sealed prior to use. As such the plastic sachets used for packaging Gutka by sealing were not covered in the definition of carry bags w.e.f. 02-07-2011 and said plastic sachets were not eligible for exemption under rule 2 after the amendment dated 02-07-2011 in Plastic Waste (Management and Handling) Rules 2011 from the application of rule 5 and 8. Government has already held in the GOI Revision Order No. 1662-1714/12-Cx dt. 06-12-2012, that CBEC circular dtd. 30-08-2011 cannot be made effective retrospectively. The ratio of said order is applicable to this case also. 10. Government notes that as per discussion in foregoing pars, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of India to a place outside India; 11.3 The harmonious reading of above said provisions reveal that export takes place when goods leave India to a place outside India. So the date of export in case of goods exported by sea will be date on which ship leaves India. The Commissioner (Appeals) has erred in considering the date of removal of goods from factory as date of export and granted rebate on wrong presumption. 11.5 Government notes that export takes place when the ship leaves or sailed out of India. In this case, out of 27 cases, in 23 cases goods were exported after 01-07-2011, as is evident from table in para 2 above. As discussed above, the export of gutkha/Pan masala etc. in plastic sachet/pouches was prohibited w.e.f 02-07-2011 and rebate of duty paid on such goods is not admissible under rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-CE (NT), Notification No. 32/08-CE (NT) dt. 28-08-2008 and Rule 14 of Pan Masala Packing Machines Rules 2008. 12 Government further notes that in four cases ARE-1 Nos. 37 to 40 all dated 07-06-2011 goods were exported prior to 02-07-2011, and as discussed in foregoing paras, the rebate of duty paid on goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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