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TMI Blog2013 (1) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-2012 -do- 8 195/1633/12 BC/298/Mum-III/11-12, 27-9-2012 -do- 9 195/1634/12 BC/299/Mum-III/11-12, 27-9-2012 -do- 10 195/1635/12 BC/292/Mum-III/11-12, 27-9-2012 -do- 11 195/1636/12 BC/302/Mum-III/11-12, 27-9-2012 -do- 12 195/1637/12 BC/318/Mum-III/11-12, 19-10-2012 -do- 13 195/1634/12 BC/320/Mum-III/11-12, 19-10-2012 -do- 14 195/1635/12 BC/46-328/Mum-I/12, 10-9-2012 Commissioner of Central Excise (Appeals), Mumbai Zone-I Mumbai 2. Common brief facts of these cases, are that the applicant a merchant exporter filed rebate claims of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The manufacturers had paid duty on said exported goods @ 10% under Notification No. 2/08-C.E., dated 1-3-2008 as amended. Similarly the manufacturers had cleared said goods for home consumption on payment effective rate of duty @ 4% up to 28-2-2011 and @ 5% w.e.f. 1-3-2011 under Notification No. 4/2006-C.E., dated 1-3-2006 as amended. The original authority after following due process of law, held that duty was required to be paid on exported goods at the effective rate of duty @ 5% i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1997 (92) E.L.T. 13 (S.C.) - CCE v. Indian Petro Chemicals, (b) 1991 (53) E.L.T. 347 (T) - Indian Oil Corporation Ltd. v. CCE, (c) 1990 (47) E.L.T. 7 (T) - Coromandal Prints & Chemicals v. CCE, (d) 1989 (44) E.L.T. 500 (T) - Dunbar Mills Ltd. v. CCE, (e) 1985 (22) E.L.T. 574 (T) - Calico Mills v. CCE, (f) 2009 (242) E.L.T. 168 - Coca-cola Ltd. v. CCE, (g) 2007 (209) E.L.T. 321 (S.C.) - Share Medical Care v. UOI, (h) 1998 (108) E.L.T. 213 - CCE v. Cosmos Engineers, (i) 2003 (160) E.L.T. 1150 - CCE v. Thermopack Industries, (j) 1996 (83) E.L.T. 123 (T) - Gothi Plastic Industries v. CCE. 4.4 Notification No. 4/2006 & Notification No. 2/2008 co-exist in the books of law and are not mutually exclusive. (i) It is an undisputed fact that both the Notifications under consideration are in existence simultaneously. Both the aforesaid Notifications do not have any provisions excluding the other. In other words, Sr. No. 62C of Notification No. 4/2006 does not have any provision stating that the said Notification has an over riding effect over Notification No. 2/2008-C.E., dated 1-3-2008 and similarly, vice versa. Both the Notifications have been issued un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioning authority cannot question the assessment. It is well settled that rebate sanctioning authority cannot question the assessment of export consignment. As to how much duty ought to be paid is beyond the jurisdiction and realm of a rebate sanctioning authority. Hence, the impugned portion of the order-in-original is liable to be set aside. It is well settled that there is no estoppel in taxation. Hence, the fact that the applicants were availing Notification No. 4/2006-C.E., dated 1-3-2006 in past is irrelevant for the present dispute. 5. Personal hearing was not yet scheduled in these cases. However the applicant vide letter dated 14-12-2012, submitted that Government has already decided the said issue in their own case vide G.O.I. Revision Order Nos. 1133-1137/12-CX., dated 7-9-2012 and therefore requested to decide these cases also without fixing any personal hearing. 6. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 7. On perusal of records, it is observed that manufacturer has cleared export goods on payment of duty @ 10% in terms of Notification No. 2/08-C.E., dated 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act, 1985 covered under serial Entry No. 21 of table to Notification No. 2/08-C.E., dated 1-3-2008 as amended, attracted general tariff rate of duty @ 10%. At the same time the Notification No. 4/06-C.E., dated 1-3-2006 providing for effective Nil rate of duty was amended vide Notification No. 4/08-C.E., dated 1-3-2008 by inserting Sr. Nos. 62A, 62B, 62C, 62D & 62E for CETH 3001, 3003, 3004, 3005 & 3006 (except 3006.60 & 3006.92) prescribing effective rate of duty @ 8%. Even in Joint Secretary (TRU) DO Letter No. 334/1/2008-TRU, dated 29-2-2008, it was clearly stated that the excise duty on drugs and pharmaceutical products falling under Central Excise Tariff Headings (CETH) No. 3001, 3003, 3004, 3005 & 3006 (except 3006.60 and 3006.92) has been reduced from 16% to 8% and thus general effective rate for all goods of Chapter 30 is now 8%. Thereafter, said Notification No. 4/06-C.E. was amended vide Notification No. 58/08-C.E., dated 7-12-2008 where under effective rate of duty was reduced to 4%. The Notification No. 4/06-C.E. was further amended vide Notification No. 4/11-C.E., dated 1-3-2011 and effective rate of duty was enhanced to 5% which was prevalent during the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-C.E., dated 1-3-2008 and the same was further reduced to 4% vide amending the said notification vide Notification No. 58/2008-C.E., dated 7-12-2008. Further Notification No. 4/06-C.E. was amended vide Notification No. 4/11-C.E., dated 1-3-2011 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 while presenting the Union Budget for 2008-09 in the Parliament stated that :- "PART-B VIII. PROPOSALS TAX "Para 144. The manufacturing sector is the backbone of any economy. It is consumption that drives production and it is production that drives investment. Having carefully studied current trends of production and consumption, I believe there is a need to give a stimulus to the manufacturing sector. Hence, I propose to reduce the general CENVAT rate on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above said Budget Speeches of Hon'ble Finance Minister. It is quite clear that Notification No. 2/08-C.E., dated 1-3-2008 (14%) and subsequent amending Notification No. 58/08-C.E., dated 7-12-2008 (10%), 4/09-C.E., dated 24-2-2009 (8%) and 6/10-C.E., dated 27-2-2010 (10%), were issued to reduce/alter the general tariff rate of duty. 8.4 Government observes that the instructions issued by C.B.E. & C. 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 C.B.E. & C. Excise Manual on Supplementary Instructions may be perused which 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 Form ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N.T.), dated 6-9-2004 (See Part 7). The goods shall be assessed to duty in the same manner as the goods for home consumption. The classification and rate of duty should be in terms of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed in the Notification No. 4/2006-C.E., dated 1-3-2006 as amended, as stipulated in the above said C.B.E. & C. 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. 4/2006-C.E. as amended. The above said C.B.E. & C. 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 goods cleared for home consumption at lower rate of duty @ 4% or 5%. He has to choose any one 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. 2/2008-C.E. as amended prescribed duty at General Tariff rate of 10% whereas effective rate of duty is 4% or 5% vide Notification No. 4/2006-C.E. as amended. Even the Joint Secretary (TRU) C.B.E. & C. D.O. Letter dated 29-2-2008 stipulated that rate of duty beneficial to assessee have to be extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification/eligibility of claimant. None of the said judgment are on the issue of sanctioning rebate of duty paid on exported goods. For applicability of the cited precedents "Government is of the opinion which is guided by the observations of Hon'ble Supreme Court in Para 10 of the judgment in case of Escorts Ltd. v. CCE, Delhi-II - 2004 (173) E.L.T. 113 (S.C.) observed, which inter alia stipulates precedent - 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 dose 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of 16% ignoring the exemption Notifications No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 prescribing duty @ 4% and nil respectively. Hon'ble High Court has upheld the Government of India Revision Order upholding the order of original authority. In this case, original authority had allowed rebate of duty paid at effective rate of 4% and allowed re-credit of balance amount in the Cenvat credit account of assessee. A specific submission regarding non-applicability of this judgment are on the ground that this decision in Nahar Industrial Enterprises case is per incuriam and hence not applicable. It has been argued that the Apex Court judgment cited here for the proposition that assessee is at liberty to avail benefit of notification which is more beneficial to him, were not considered by Hon'ble High Court of Punjab & Haryana. In this regard, Government observes that applicability of said judgments of Hon'ble Supreme Court are already discussed in foregoing paras and therefore there is no merit in the pleading that said decision is per incuriam. So as discussed above, this judgment of Hon'ble High Court is squarely applicable to the instant cases. 8.9 Applicants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns which were availed simultaneously in terms of C.B.E. & C. Circular dated 28-7-2004. In case of home consumption clearance, no Cenvat credit was availed and clearances were made at nil rate. Assessee was also maintaining separate accounts for both types of clearance as required in the C.B.E. & C. Circular. Government did not allow rebate of duty paid at tariff rate @ 16% but rebate claim was allowed of the duty paid at the effective rate of 4% in terms of Notification No. 29/2004-C.E. 8.11 Government observes that the respondent in their counter reply relied upon C.B.E. & C. Circular No. 510/06/2000-CX., dated 3-2-2000. In this regard, the Government observes that w.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act and therefore said Circular issued prior to the introduction of transaction value concept, cannot be strictly applied after 1-7-2000. As per Para 3(b)(ii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate sanctioning authority has to satisfy himself that rebate claim is in order before sanctioning the same. If the claim is in order he shall sanction the rebate either in whole or in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be retained by Government and it has to be returned to manufacturer/applicant in the manner in which it was paid. Hon'ble High Court of Punjab & Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & H) has decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled to refund thereof in case regardless of made of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate." Hon'ble High Court of Punjab & Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat Credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the cenvat credit account of the concerned manufacturer. 9. In view of position explained in foregoing para, Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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