TMI Blog2015 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... 80% of duty paid is disputed on account of valuation dispute, the valuation issue is the major issue in this case. So, the impugned order cannot be called as only relating to rebate claim but it also relates to valuation dispute which is the major issue in this case matter. Government has no jurisdiction to pass order in respect of Order-in-Appeal relating to valuation issue in terms of Section 35EE r/w provision (i) (ii) of Section 35(b)(1) of Central Excise Act, 1944. The jurisdiction to decide valuation issue lies with the Hon’ble CESTAT. - Decided against Revenue. - F. No. 198/204/2012-RA - Order No. 330/2013-CX - Dated:- 1-4-2013 - Shri D.P. Singh, Joint Secretary Shri Pratul Tiwary, DC and S.S Narkar, Supdtt, for the Department. ORDER This revision application is filed by the applicant Commissioner of Central Excise, Raigad against the order-in-appeal US/332/RGD/2012, dated 17-5-2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-II with respect to order-in-original No. 1981/11-12/DC(Rebate)/Raigad, dated 31-1-2012 passed by Deputy Commissioner of Central Excise (Rebate), Raigad. 2. Brief facts of the case are that the respondent herein M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 The Commissioner (Appeals) by opining upon manner and requirements of assessment herein has erred in going beyond the issue and submission of the claimant before the adjudicating authority and has also traversed beyond the ground of appeal. Besides, the Commissioner (Appeals) has erred in applying the Drugs (Price Control) Order, 1995 and the Legal Metrology (Packaged Commodities) Rules, 2011 etc. wrongly for goods exported outside India. Section 1(2) and Section 3 of the said Act clearly indicate that the intention of the enactment of the said law is to provide relief to the general public of India by way of equal/uniform distribution of goods at fair prices with regular availability of essential commodities being necessary for day to day life. It is certain, that this Act is brought for people of India and not for others residing outside India. Secondly, the provision of this Act will not be enforced beyond the territory of India. Therefore, the valuation of goods for export from India will not be governed as per the provisions of the Essential Commodities Act, 1955 and the orders issued thereunder. 4.2 The Drugs (Price Control) Order, 1995 is not an independent Act/Law/Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) has erred in taking the mutual agreement between the buyer and the seller as legal requirement which is neither correct nor legal. In this matter it is mutually agreed upon by the claimant and their buyer from the country outside India that the maximum retail price in Indian Rupees is to be printed on each strip. Such maximum retail price would be printed as mutually agreed from time to time . On the other hand, the price quoted by the buyer from the country outside India for the said export is in U.S. dollar only and on the basis of these prices for different products, the FOB is calculated at the time of export. Hence it cannot be said that the prices printed on the label of container/strips being mutually agreed upon from time to time are as per the provisions of any Act/Law/Rules/Order/Drugs (Price Control) Order, 1995. Thus the provisions of MRP based valuation as per Section 4A of Central Excise Act, 1944 are not applicable for the export of goods from India, but only the FOB value is relevant which is based on the normal transaction value under Section 4 of Central Excise Act, 1944. 4.4 The Commissioner (Appeals) has also erred in artificially dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case, the transaction value is FOB value and the duty should have been paid on the FOB value in case of export of goods. This implies that any amount paid in excess of transaction value cannot be duty. This is squarely applicable in case of rebate under Section 11B as this portion of statute provides for rebate of duty; hence, rebate of any amount other than duty cannot be sanctioned on rebate. Hence, the whole of duty of excise would mean the duty payable under the provision of Central Excise Act, 1944 which is only legally payable. Any amount paid in excess of the duty liability on one s own volition cannot be treated as duty. 4.6 The Commissioner (Appeals) also has wrongly held that the refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004 was available to the claimant. He has further held that the payment of higher amount of duty on the goods exported than what is actually due could not result in any undue benefit. This finding of Commissioner (Appeals) is incorrect because refund under Rule 5 of Cenvat Credit Rules, 2004 requires fulfilment of some conditions. However, no justification has been provided as to how the higher amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the allegation made in the impugned Revision Application that the respondent should have assessed the duty under Section 4 ibid is totally wrong and against the provisions of Section 4A(2) ibid. In this regard, the respondent also draw your kind attention towards the following judgments of the Hon ble CEGAT in the case of M/s. Mona Electronics v. CCE - reported in 2001 (135) E.L.T. 293 (CEGAT) wherein it is categorically held that, Valuation (Central Excise) - Maximum retail price - Provisions of Section 4A are mandatory and no option available to assessee - Section 4A of Central Excise Act, 1944 (Para 4) and judgment in the case of M/s. Bata India Ltd. v. CCE, reported in 1999 (114) E.L.T. 78 (CEGAT) wherein it is held that, Valuation (Central Excise) - Footwear having been specified under Section 4A of Central Excise Act, 1944 value thereof to be determined thereunder and not under Section 4 ibid in view of non obstante clause - Value occurring in sub-heading 6401.12 of Central Excise Tariff Act, 1985 refers to value under Section 4A only. Similar is the judgment in the case of M/s. Indica Laboratories Pvt. Ltd. v. Commissioner of Central Excise, Ahmedabad - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should receive similar treatment. The said decision is also relied by the Double Bench of Hon ble High Court of Delhi in the matter of Sh. Deeksha Suri v. Income Tax Appellate Tribunal [1998 (102) E.L.T. 524 (Del.)] (ii) In this regard, the respondent also draw your kind attention towards the judgment of the Hon ble CESTAT in the case of CCE v. M/s. Maini Precision Products Pvt. Ltd. - reported in 2010 (252) E.L.T. 409. 5.6 If the triplicate copy of ARE-1 carries the endorsement of Excise Officer (Superintendent in charge of manufacturing unit) to the effect that the export clearance was recorded in Daily Stock Register/duty was paid through PLA/CENVAT and the duty payments has been ascertained from the Central Excise invoice then in the light of the relevant Circular, the rebate claims of the respondent are absolutely payable. 5.7 The Circulars/Instructions issued by the C.B.E. C., which are relevant to the instant case are as follows : (a) Para 4.1 of Chapter 8 of the C.B.E. C. s Excise Manual of Supplementary Instruction, 2005; (b) Circular No. 510/06/2000-CX., dated 3-2-2000 issued from F. No. 209/29/99-CX., 6; (c) Circular No. 625/16/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that different parameters cannot be maintained by the department for assessment of duty i.e. when the duty is demanded on the export goods which are not exported due to any reason vis- -vis when the duty is to be rebated on the export goods which are exported. 5.11 The respondent has even obtained clarification from the Metrology Department also. The Deputy Controller of the Legal Metrology, Haryana vide Memo No. 652, dated 17-4-2012 has categorically clarified that - This is to inform you that as per the Legal Metrology Act, 2009 and the Legal Metrology (Packaged Commodities) Rules, 2011 it is mandatory to mention Maximum Retail Price on the packages which are not manufactured exclusively for export . Your goodself would appreciate that in the light of the sample invoices submitted by the respondent it is clearly beyond doubt that the respondent is not manufacturing the pharmaceutical products exclusively for export. Hence in view of the said clarification also it is clear that the respondent is bound and legally obliged to mention RSP on the export goods. In this regard, the respondent is relying upon the judgment made by your goodself in the matter of M/s Triveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, since the main issue involved was of valuation of goods, Shri Pratul Tiwari stated that they will file a written reply separately. Nobody attended said hearing on behalf of respondent party. 6.1 However, the next hearing scheduled on 4-3-2013 at Delhi was attended by Shri Pavel Garg, Director of [respondent] party who mainly reiterated the submission made in their written counter reply dated 27-11-2012 and 4-3-2003. 6.2 The applicant department vide their letter F. No. V/15-282/Reb./ Combitic/Rgd/12/1035, dated 29-1-2013 mainly contended that as per Section 35EE of Central Excise Act, 1944 r/w proviso to Section 35B(1), Tribunal has no jurisdiction to decide appeal against an Order-in-Appeal relating to rebate of duty and appeal has been rightly filed with JS (RA). 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. On perusal of records, Government notes that the respondents herein as manufacturer exporter has cleared the impugned goods for export on payment of duty after making assessments under Section 4A of the Central Excise Act, 1944. The rebate sanctioning authority after noticin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse; (b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; [(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998:] Provided further that the appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther notes that applicant department has relied upon decisions of Hon ble CESTAT Principal Bench, New Delhi in the case of M/s. Gillette India Ltd. v CCE, Jaipur - 2006 (193) E.L.T. 331 (T-Del.) and CESTAT South Zonal Bench, Bangalore in the case of Indo Nissin Food Ltd. v. CCE, Bangalore-I - 2008 (230) E.L.T. 143 (T-Bang.) wherein it was held that export consignments were required to be valued in terms of transaction value under Section 4 and not in terms of Section 4A of Central Excise Act, 1944. The decision in these cases also strengthen the view that the jurisdiction to decide Order-in-Appeal relating to valuation dispute which is a major issue in this case, lies with the Hon ble CESTAT. 13. It is also emphasized here that for interpreting the (above) provisions of law, Hon ble Supreme Court of India in its judgments in case matters of M/s ITC v. CCE [2004 (171) E.L.T. 433 (S.C.)] and M/s Paper Products Ltd. v. CCE [1999 (112) E.L.T. 765 (S.C.)] has made it unambiguously clear that simple and plain readings of wordings of law are to be strictly adhered to thereby leaving no room to interpret and twist the purpose and meaning of such legal provisions written in the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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