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2015 (12) TMI 1266 - GUJARAT HIGH COURT

2015 (12) TMI 1266 - GUJARAT HIGH COURT - 2016 (332) E.L.T. 680 (Guj.) - Supply of goods to SEZ units by DTA suppliers - deemed export - procedure not followed - Rebate to of CVD paid claimed under Rule 18 of the Central Excise Rules, 2002 on the strength of disclaimer certificate by the suppliers in favour of the Petitioner - Held that:- In case of the petitioner, the goods in respect of which rebate is sought under the notification are raw materials which have been imported from foreign countr .....

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ods is a duty equal to the central excise duty leviable on such goods if manufactured in India. Such duty is levied to offset the disadvantage to like Indian goods due to high excise duty on their inputs and to provide a level playing field to indigenous goods which have to bear various internal taxes. However, such duty is not an excise duty.

It is by now well settled that in a taxing statute there is no scope of any intendment and the same has to be construed in terms of the languag .....

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an the excise duty collected under the enactments stated therein. Undisputedly, the duties paid by the petitioner in relation to the goods in question do not fall within the enactments stipulated in the notification. Clearly therefore, the petitioner has failed to satisfy the basic requirements for availing of the benefits under the notification. - petitioner is not entitled to any declaration to the effect that it is eligible for getting the rebate claim as sought for in the petition - Decided .....

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of Special Economic Zone and has given various benefits like tax exemption scheme, exemption from customs duties, exemption from excise duties, etc. to the units in the said area. The Special Economic Zone Act, 2005 also gives deemed benefit to the local/DTA industries who supply goods or provide services in the SEZ demarcated area as if such goods are exported out of India and get all the benefits, which are otherwise available to a normal exporter who exports his goods or provides services to .....

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vernment may, by notification, grant rebate of duty paid on such excisable goods, or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. In the present case, the petitioner company has purchased the raw materials from various local dealers/traders who have either imported such raw materials from foreign countries or procured .....

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ims under rule 18 of the Central Excise Rules, 2002 for the amount of the duty paid on the goods, which are ultimately supplied by the DTA dealers or manufacturers for the period from February, 2010 to August, 2011. The respondent authorities returned such rebate claims on the ground that the same should be filed before the Maritime Commissioner and also raised an objection that ARE-1 is a mandatory document for claiming the rebate, whereas the petitioner had filed rebate claim on the basis of i .....

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pplier and import for them and hence rebate is well within its rights, once again submitted all the claims with the authorities, but till date there was no positive outcome. Being aggrieved by the inaction on the part of the respondents, the petitioner has filed the present petition for quashing and setting aside the communication dated 18th May, 2011 of the Assistant Commissioner, Central Excise, Ahmedabad-II (the Respondent No.3 herein) and seeks a declaration that the petitioner is eligible t .....

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n raised by the respondents for denying the rebate claim on the ground that the goods on which rebate claims are filed are imported and not produced or manufactured or processed in India but sold directly by the registered importers without any manufacturing or processing being done on them in India is without appreciating the correct legal provisions and without considering the deeming fiction created by the statute. It was submitted that the dealers have imported the goods and paid all the dut .....

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learance of the goods. The CVD is basically an additional duty levied under section 3 of the Customs Tariff Act, 1975 which provides that any article which is imported into India shall, in addition, be liable to a duty equal to the excise duty for the time being levied on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated .....

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ufacture or process of such goods. In the present case the petitioner had paid the additional duties in the form of CVD in lieu of central excise duties on the goods imported and therefore, had filed rebate claim of the CVD already paid and available because, for the supplier it was export and therefore he is eligible to get the set off in the form of rebate. It was, accordingly, urged that such a benefit, though available under the Act, cannot be denied by any authority on a flimsy ground. It w .....

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the Central Excise Tariff Act, 1985 as being subject to a duty of excise; that at the time of import, the goods have suffered additional duty (CVD) which is equivalent to the central excise duty payable on such goods if manufactured in India and, therefore, such goods satisfy the requirements of excisable goods. Under the circumstances, the claim of the petitioner company with regard to the rebate of additional duty (CVD) is well within the four corners of law and is, therefore, required to be a .....

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ication issued under rule 18 of the rules, it was pointed out that the same does not provide any condition to the effect that rebate has to be granted only if the input is processed or manufactured in India. It was urged that the goods purchased by the petitioner have suffered duty and that the petitioner is, therefore, entitled to claim rebate and is eligible to get rebate of the goods exported by it. 3. Opposing the petition, Mr. Y.N. Ravani, learned Senior Standing Counsel for the respondent .....

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cise duty and accordingly, notwithstanding the fact that the goods have borne countervailing duty, such goods remain imported goods. It was submitted that duties paid under the Customs Tariff Act cannot be equated with the duties paid under the Central Excise Act. Under the circumstances, the petitioner is not entitled to the rebate of the duties paid by it on such goods. Referring to rule 18 of the rules, it was pointed out that the same clearly speaks of the duty paid on excisable goods. The a .....

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the goods in question have not borne any excise duty. Reference was also invited to section 3 of the Act to point out that the same provides for levy of the duty specified in the First Schedule and Second Schedule to the Central Excise Tariff Act, 1985 on the goods which are manufactured in India. It was submitted that therefore, rule 18 clearly envisages the grant of rebate in relation to excisable goods, namely, goods which are manufactured or processed in India and not in relation to importe .....

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tailed reasons have been recorded as to why the petitioner is not entitled to claim rebate under the notification No.19/4/04C(NT) dated 6th September, 2004. At this juncture, it is germane to reproduce the contents of the impugned communication dated 18th May, 2011: "Please refer to your letter dated 14/03/2011 received by this office on 21/04/2011 on the above subject. It is apparent that you have filed a application for rebate of duty on excisable goods under Form-C. Subsection 2(xvi) of .....

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ods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification". The said Rule 18 clearly indicates that where any goods are exported, the Central Government may grant rebate of duty on such excisable goods. Under Section 2(d) of the Central Excise Act, 1944, "excisable goods" mcans goods specified in the First Sch .....

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and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). The goods indicated in your rebate claim applications have not been produced or manufactured or processed in India but are imported goods, which apparently have been sold to you directly by the Registered importers without any manufacturing or processing done on them in India. In exercise of the powers conferred under the abovementioned Rule 18 of the Central Excise Rules, 2002, the Central Gov .....

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house, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order. The said notification also provides in detail the procedure of sealing/verification of the goods/duty-paying documents by the Superintendent or Inspector of Central Excise having jurisdiction over the factory of production or manufacture or warehouse. Besides, at Explanation- I of the said notification, "duty" for the purpose of this notification has been defined as duties of .....

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nance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under Section 91 read with Section 93 of the Finance Act, 2004; (h) the additional duty of excise levaiable under clause 85 of the Finance Bill, 2005; (i) Secondary and Higher Eduction Cess on excisable goods leviable under the Finance Act, 2007. It is evident from the said notification that the claim for rebate of duty on excisable goods is meant for manufacturers or processors. The said rebate claim facility has been .....

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here even if some minor processing is done on a product in India, but if it still does not bring in to existence any commercially known new commodity, then such processing will not be considered a manufacturing activity and nor the goods exported after such minor processing would be considered as excisable goods to become eligible for the benefit of this Rule. As per CBEC 's Circular No.155/66/95 dated 17.10.1995, rebate on export is not allowed on market purchased goods without any further .....

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goods in the Central Excise Tariff Act, 1985, or (ii) the wholesale purchase or sale (whether on how own account or as a broker or commission agent) or the storage of any specified goods included in the Central Excise Tariff Act, 1985, shall get himself registered with the proper officer. Accordingly, there is a clear distinction in the Central Excise law between the registered Central Excise manufacturer and the Central Excise Registered dealer, and the Registered Central Excise importers menti .....

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ntioned notification under Rule 18 of the Central Excise rules, 2002, is not meant for Registered importers who are passing on the credit of duties paid on imported goods, while exporting the same goods without any further manufacture or processing. In view of the above, it is clear that rebate of duty is paid for the excise duties paid on export of goods manufactured or processed in India and attracting Central Excise duties. The rebate claims filed by your are not pertaining to goods on which .....

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paid by the registered importer being a customs duty, the refund of such duties should be claimed by the importer from the Customs Authorities at the port of import. Hence, your applications cannot be accepted by this office as rebate claim applications and therefore are returned herewith." 5. For the reasons that follow, this court is in complete agreement with the view adopted by the respondent authority in the impugned communication dated 18th May, 2011. 6. The Central Excise Act, 1944 i .....

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goods exported out of India. Rule 18 of the rules makes provision for rebate of duty and lays down that where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or process of such goods and the rebate shall be subject to such conditions and limitations and fulfilment of such procedure as may be specified in the notification. In exercise of powers conferred by rule 18 of the Cent .....

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directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a special or general order. The notification further provides for the procedure of sealing/verification of the goods and examination at the place of despatch. Accordingly, in terms of the procedure, the manufacturer/exporter registered under the Central Excise Rules, 2002 and the exporters who procure and export the goods directly from the factory or warehouse can exercise the optio .....

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llected under the enactments enumerated therein. For the purpose of availing of the benefit of the notification, the petitioner would, therefore, be required to satisfy the conditions and limitations provided therein. On a plain reading of the notification, it appears that the intention is to grant rebate in respect of the goods which are exported directly from the factory or a warehouse by a manufacturer or exporter registered under the Central Excise Rules and the merchant exporters who procur .....

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ought under the notification are raw materials which have been imported from foreign countries or procured locally from local manufacturer. The claim for rebate has been lodged on the goods received by the supplier on payment of duties including CVD. It is the case of the petitioner that the dealers have imported the goods and paid all duties including CVD, which is equivalent to the central excise duties as if the goods are manufactured in India. However, as rightly contended by the learned Sta .....

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