TMI Blog2015 (3) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... is pertinent to mention here that as per Section 88 of Finance Act, 2008, Rule 18 of Central Excise Rules, 2002 was amended retrospectively to the effect that rebate of duty on excisable goods cleared from factory for export shall also be admissible for that portion of duty paid for which the refund has been granted in terms of the Notification No. 32/99-C.E., dated 8-7-1999 and 33/99-C.E., dated 8-7-1999 and other area based exemption notifications, during the period 1-3-2002 to 7-12-2006. - by inserting clause (h) in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 vide Notifn. No. 37/2007-C.E. (N.T.), dated 17-9-2007 in case of export of goods which are manufactured availing Notifications 32/99 and 33/99-C.E. both dated 8-7-1999 and other such notifications, the rebate shall not be admissible under this notification. Hon’ble High Court in [2010 (2) TMI 547 - GUJARAT HIGH COURT] has held that said notification is applicable prospectively and despite amendment made in Rule 18 as per Section 88 of Finance Act, 2008, the right vested in the exporter to claim rebate in respect of export of goods after 8-12-2006 till 17-9-2007 continued and its validity and enforceability coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The issue relating to amount of duty that is to be rebated under Rule 18, in respect of excisable goods manufactured and cleared availing the area based exemption schemes available for North-East under Notifn. Nos. 32/99-C.E. and 33/99-C.E. both dated 8-7-1999 has been examined by the Central Board of Excise and Customs, who vide its Letter F. No. 209/11/2005-CX-6, dated 8-12-2006 has confirmed that the same was referred to the Law Ministry, who have opined that the term duty paid used in Rule 18 does not include that portion of duty, which is subsequently refunded to the manufacturer. It has further been opined by the Law Ministry that the amount so refunded to the manufacturer is to be treated as an exemption and rebate of the said amount cannot be paid. 4.2 It is evident that the Commissioner (Appeals), while arriving at his decision, has solely based on the Board s Instruction issued under F. No. 209/11/2005-CX-6, dated 3-4-2007 and has applied the clarification of the said authority to the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s other than those located within the area specified for area based exemption) using inputs manufactured by units availing are based exemption and the amount of rebate obviously refers to the amount of duty paid by such manufacturers on such manufactured goods. 4.5 Contents as above of said instructions, when read with the Instruction under F. No. 209/11/2005-CX-6, dated 8-12-2006 leaves no scope to hold that the same allows rebate of duty for as such export of inputs manufactured and cleared by units availing the area based exemption scheme. In view of the facts and legal provisions as above, Commissioner of Central Excise, Kolkata-VII Commissionerate is of the opinion that the instant Order-in-Appeal No. 90/KOL-VII/2011, dated 25-8-2011 passed by Commissioner of Central Excise (Appeals-I) is not proper and legal. 5. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. No reply was received till the personal hearing held on 4-4-2013. However during hearing, 7 days time was sought to file reply. Respondent filed written submission vide letter dated nil received on 7-5-2013 stating as under :- 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he country are the manufacturers, and no portion of duty paid by them is refunded to them, therefore, rebate cannot be denied to such units. 5.4 For that the Maritime Commissioner has completely failed to appreciate that the Notification No. 37/2007-C.E. (N.T.), dated 17-9-2007 laying down the barring conditions in allowing rebate of duty on export of goods manufactured by a manufacturer availing the said notifications has only prospective effect and cannot be implied retrospectively. He has failed to follow the settled law that notification comes into operation from the date. This vital change in non-granting rebate of duty paid on export of goods in a given situation having been introduced first time vide clause (h) para (2) in Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 inserted by said Notification dated 17-9-2007, concerned trade and industry could only know about the change in the stand of the department only on and from 17-9-2007 and never prior to that date. In order to ensure that public is aware of the change, a notification issued is required to publish and made available for sale on the day the notification is issued. The effect of said vital amendments is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the manufacturing unit in North East area is getting refund of the portion of duty paid in cash and therefore in view of C.B.E. C. clarification vide Circular dated 8-12-2006, M/s. Vedik Vanijya (P) Ltd. the respondent is entitled for rebate claim under Rule 18 of Central Excise Rules, 2002. In this regard, Government observes that C.B.E. C. vide Circular dated 3-4-2007 has further clarified the instructions contained in Circular dated 8-12-2006. The Circular dated 3-4-2007 reads as under :- Subject : Rebate on goods manufactured in North East, etc., and subsequently exported under Rule 18 of the Central Excise Rules, 2002 - Reg. Please refer to the instructions issued under letter of even number dated 8-12-2006 [2006 (204) E.L.T. T12] on the above subject. In this regard, references have been received from the field formations as well as the trade and industry seeking clarification on applicability of said instructions to the goods exported by units using the inputs manufactured and cleared by units availing the area based exemption scheme. 2. The issue has been examined. It is seen that the units located in other parts of the country are permitted to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. It is pertinent to mention here that as per Section 88 of Finance Act, 2008, Rule 18 of Central Excise Rules, 2002 was amended retrospectively to the effect that rebate of duty on excisable goods cleared from factory for export shall also be admissible for that portion of duty paid for which the refund has been granted in terms of the Notification No. 32/99-C.E., dated 8-7-1999 and 33/99-C.E., dated 8-7-1999 and other area based exemption notifications, during the period 1-3-2002 to 7-12-2006. Further Hon ble High Court of Gujarat in its judgment dated 25-2-2010 in SCA No. 12638/08 with SCA No. 12369/08 filed by M/s. Welspun Gujarat State Rohren Ltd. reported as 2010 (254) E.L.T. 551 (Guj.), has held that by inserting clause (h) in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 vide Notifn. No. 37/2007-C.E. (N.T.), dated 17-9-2007 in case of export of goods which are manufactured availing Notifications 32/99 and 33/99-C.E. both dated 8-7-1999 and other such notifications, the rebate shall not be admissible under this notification. Hon ble High Court has held that said notification is applicable prospectively and despite amendment made in Rule 18 as per Section 88 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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