TMI Blog2013 (12) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... f the duty paid on export clearances. The adjudicating authority had sanctioned cash rebate @ 4% or @ 5% adv. + cess on the FOB value and remaining amount was sanctioned by way of credit in their Cenvat account under Rule 18 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act, 1944. 3. Being aggrieved by the said orders-in-original, applicant filed appeals before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 In respect of Medicaments of Heading, 3004 of the First Schedule to the said Tariff Act, the Indian Parliament has floated two different Notifications, namely (1) Notification 4/2006-C.E., dated 1-3-2006, with Sl. Entry No. 62-C, whereunder, Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, are chargeable to total Central Excise Duty of 4.12% ad valorem and (2) Notification 2/2008-C.E., dated 1-3-2008, with Sl. Entry No. 21, whereunder, same Medicaments of the same Heading 3004 of the First Schedule to the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Case laws relied upon by the applicants are as follows : Mangalam Alloys Ltd. v. CCE, Ahmedabad - 2010 (255) E.L.T. 124 (Tri.-Ahmd.) CCE, Baroda v. India Petro Chemicals Corporation Ltd. - 1997 (92) E.L.T. 13 (S.C.) HCL Ltd. v. CCE, New Delhi - 2001 (130) E.L.T. 405 (S.C.) Share Medical Care v. UOI - 2007 (209) E.L.T. 321 (S.C.) CCE, Bangalore v. Maini Precision Products Pvt. Ltd. - 2010-TIOL-1663 (Tri.-Bang.) = 2010 (252) E.L.T. 409 (Tribunal) HYVA (India) Pvt. Ltd. v. CCE Belapur - 2010-TIOL-1410-CESTAT-Mum. 5. Personal hearing was scheduled in this case on 28-11-2013 16-12-2013. Nobody attended the hearings. The applicants vide letter dated 10-12-2013 has requested to waive the personal hearing and decide the case as per submissions made by them in revision applications. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. Government observes that the original authority sanctioned the rebate claims of the duty paid at the rate of 4% or 5% and allowed recredit of the balance amount of duty paid in the Cenvat credit account of the applicant. Commissioner (Appeals) u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been reduced from 16% to 14%. This reduction applies to all goods that hitherto attracted this general rate of 16%. In some cases, a deeper reduction has been made, the details of which are indicated in the subsequent paragraphs. These changes have been carried out by notification. The other ad valorem rates of 24%, 12% and 8% have been retained. 2.2 Since the reduction in the general rate has been carried out by notification, the possibility of the same product/item being covered by more than one notification cannot be ruled out. In such a situation, the rate beneficial to the assessee would have to be extended if he fulfils the attendant conditions of the exemption. 3. Drugs and Pharmaceuticals 3.1 Excise duty on drugs and pharmaceuticals falling under Heading Nos. 3001, 3003 (export Menthol crystals), 3004, 3005 and 3006 (except 3006 60 and 3006 92 00) has been reduced from 16% to 8%. Thus, the general effective rate for all goods of Chapter 30 is now 8%. However, certain specified items such as life saving drugs continue to be fully exempt. Excise duty has been fully exempted on Anti-AIDS drug ATAZANAVIR, and bulk drugs for its manufacture. The J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 4 percentage points across the board on 7th of December, 2008 and by another 2 percentage points in the mean Cenvat rate on the 24h February, 2009. 117. 118. 119. 120. With --- --- further convergence of central excise duty rates to a mean rate - currently 8 per cent. I have reviewed the list of items currently attracting the rate of 4 per cent., the only rate below the mean rate. There is a case for enhancing the rate on many items appearing in this list to 8 per cent., which I propose to do, with the following major exceptions : food items; and drugs, pharmaceuticals and medical equipment. Some of the other items on which I propose to retain the rate of 4 per cent. are : paper, paperboard their articles; items of mass consumption such as pressure cookers, cheaper electric bulbs, low priced footwear, water filters/purifiers, CFL etc. : power driven pumps for handling water and paraxylene. Further, the Hon ble Finance Minister in his speech while presenting the Union Budget for 2010-11 in the Parliament stated that : PART - B INDIRECT TAXES 142. Unlike the time I presented the last Budget, symptoms of economic recovery are more wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the exemption notification. The said instruction is issued specifically with respect to sanctioning of rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of these instructions. As explained above, Notification No. 2/2008-C.E., dated 1-3-2008 as amended prescribed General Tariff rate of duty @ 10% which was in fact brought down from 16% to 14% and then to 8% and finally to 10% by different amending notifications. The Notification No. 4/2006-C.E., dated 1-3-2006 as amended prescribed effective rate of duty from initial rate of 0% to 8% and finally to 4% by different amending notifications. As such it is not correct to say that it is a case of applicability of two notifications only and assessee is at liberty to choose any one notification which is beneficial to him. In this case, Notification No. 2/2008-C.E. as amended provided for General Tariff rate of duty and Notification No. 4/2006-C.E. as amended provided for effective rate of duty and they have to be strictly construed as such. Therefore they have to be read together as stipulated in Para 4.1 of Part-I of Chapter 8 of C.B.E. C. Excise Manual. In fact, this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistency and discipline are of far greater importance than winning or losing Court proceedings. In view of said principles laid by Hon ble Supreme Court, Government upholds the applicability of abovesaid C.B.E. C. Instructions in this case. 8.6 Applicant has relied upon number of case laws to the proposition that it was upto the assessee to choose a notification which is most beneficial to him. Government notes that in the cases cited namely CCE, Baroda v. India Petro Chemicals and HCL Ltd. v. CC, New Delhi, Hon ble Supreme Court has held that when two notifications co-exist simultaneously, then assessee has the option to choose any one of the notifications beneficial to him. Hon ble Apex Court has categorically held that in such a situation assessee has option to choose any one notification. Apex Court has not stated that assessee can avail both the notifications simultaneously. Whereas in the instant case applicant has not chosen one notification for all the clearance but decided to avail benefit of both the notifications. The apparent motive of clearing export goods at higher rate of duty @ 10% and goods for home consumption at 4% is to encash the accumulated Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court has held in the case of CCE v. Parle Exports - 1988 (38) E.L.T. 741 (S.C.) that when a notification is issued in accordance with power conferred by statute, it has statutory force and validity and therefore exemption under notification is, as if it were contained in the Act itself. Apex Court has clearly observed that any exemption notification specifying effective rate has to be complied with. In this regard, Hon ble CESTAT, Ahmedabad Bench in its judgment in the case of Mahindra Chemicals v. CCE, Ahmedabad - 2007 (208) E.L.T. 505 (Tri. - Ahmd.) while relying on abovesaid Apex Court judgment has held that exemption notification has to be construed as if this rate was prescribed by statute and when the legislature has decided to exempt certain goods by notification, the exemption cannot be negated by an assessee by opting for payment of duty. 8.7.2 Hon ble Supreme Court has also held in the case of M/s. Belapur Sugar and Allied Industries Ltd. v. CCE - 1999 (108) E.L.T. 9 (S.C.) that even if duty paid under ignorance of law or otherwise, the rebate cannot be refused since party has paid the duty. Further, Hon ble Apex Court has held that if the duty paid shown to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX, dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944. 8.9 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 cash regardless of mode 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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