TMI Blog2016 (7) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... mended, as applicable on the relevant date on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. As regards the discrepancies in Chapter heading in ARE-I, Excise invoice viz-a-viz Shipping Bills, the applicant themselves admitted to have committed the mistake. They have further stated to have applied for amendment before custom authorities. However, even after more than 4 years of such application, the applicant could not submit any order of appropriate authority allowing the amendment. As such, the applicant's contentions on this ground cannot be accepted. Thus the lower authorities have rightly held that the discrepancy in description of the product exported on the shipping bill and corresponding excise invoice would mean that the impugned goods have not been exported by the assessee and hence the applicant is not entitled to rebate. Decided against the applicant. - 195/385/2012-R.A.(CX) - ORDER NO. 51/2016-CX - Dated:- 28-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by M/S Cipla Ltd., Mumbai, (hereinafter referred to as the Applicant against the Order-in-Appeal No. BC/367/MU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in HCL Ltd. vs. Collector of Customs, New Delhi 2001 (130) ELT 405 (SC), wherein it was held that - The question in these appeals is covered in favour of the applicant by the order of this Court in Collector of Central Excise, Baroda Indian Petro Chemicals [1997 (92) EL T 13], Where there are two exemption notifications that cover the goods in question, the assessee is entitled to the benefit of that exemption notification which gives him greater relief) regardless of the fact that that notification is general in its terms and the other notifications is more specific to the goods. (ii) They also further referred and relied on following decision of Supreme Court, High Court and CESTAT for this proposition (a) 1997 (92) ELT 13 (SC) -CCE vs. Indian Petro Chemicals, (b) 1991 (53) ELT 347(T) -Indian Oil Corporation Ltd. vs. CCE (c) 1990 (47) ELT 7 (T)- Coromandal Prints Chemicals vs. CCE (d) 1989 (44) ELT 500 (T) -Dunbar Mills Ltd. vs. CCE (e) 1985 (22) ELT 574 (T) - Calico Mills vs. CCE, (f) 2009 (242) ELT 168 -Coca-cola Ltd. vs. CCE, (g) 2007 (209) ELT 321 (SC) - Share Medical care vs. (JOI (h) 1998 (108) ELT 213 - CCE vs. Cosmos Engineers (i) 2003 (160) ELT 1150 - CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods shall be exported after payment of duty. The fact that the goods which have been exported and have suffered excise duty is also not in dispute. (iii) The CESTAT in the case of Gayatri Laboratories vs. CCE - 2006 (194) ELT 73 (T) held that rebate claim to the extent of duty paid is available and that the rebate claim cannot be restricted on ground that less duty should have been paid in terms of Notification. 4.7 Rebate sanctioning 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. The applicant placed reliance upon CBEC's Circular No.510/06/2000-CX dated 03.02.2000. 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-CE dated 1.03.06 in past is irrelevant for the present dispute. 4.8 That the matter of discrepancy in description of the product exported, the ISO-ME-CAPSULES is a food product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order-in-Original. Now the applicant has filed this Revision application on rounds mentioned in para (4) above 8. The applicant has contended that both the above said notifications has approval of Parliament and therefore they are at liberty to avail any notification which ever they find beneficial to them. Therefore they have claimed themselves to be eligible to rebate of duty paid on export goods @10% in terms of Notification No. 2/08-CE dated 1.03.08 as amended. 8.1 It is observed that Central Government issued Notification No. 2/08-CE dated 01.03.08 which has an effect of reduction in general rate of Central Excise Duty on various products from 16% to 14%. Thereafter, this notification was amended by Notification No. 58/08-CE dated 07.12.08 reducing the said general rate from 14% to 10%. Vide Notification No. 4/09-CE dated 242.09, said Notification 2/08-CE was further amended to reduce the general rate of duty from 10% to 8%. Finally the Notification No. 2/08-CE was amended by Notification No. 6/10-CE dated 27.02.10 to enhance the said general rate of duty from 8% to 10%. Pharmaceutical drugs and medicines falling under Chapter 30 of First Schedule to Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A TAZ4NA VIR, and bulk drugs for its manufacture. The Joint Secretary (TRU) CBEC has made it amply clear that reduction in General Tariff Rate has been carried out by Notification and therefore there could be a possibility of same item being covered by two notifications and directed that the rate beneficial to assessee may be extended. In the instant case, the applicant has availed both the rates of duty, which is not allowed in TRU letter. Here basically the issue involved is whether rebates of duty paid at tariff rate or effective rate is to be allowed and not exactly regarding applicability of two notifications for payment of duty. 8.3 It is felt that it is necessary to go into background to find out the reason behind the issue of these two notifications. Notification No. 4/2006-CE dated 1.03.06 when issued, originally did not prescribed any concessional rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re paper, paperboard their articles; items of mass consumption such as pressure cookers, cheaper electric bulbs, low priced footwear, water filers / 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 widespread and clear-cut now. The three fiscal stimulus packages that the Government introduced in quick succession have helped the process of recovery significantly. The improvement in our economic performance encourages a course of fiscal correction even as the global situation warrants caution. Therefore, I propose to partially roll back the rate reduction in Central Excise Duties and enhance the standard rate on all non-petroleum products from 8 per cent to 10 percent ad valorem. - From above, it is quite clear that Notification No. 2/08-CE dated 1.3.08(14%) and subsequent amending Notification No. 58/08-CE dated 7.12.08 (10%), 4/09-CE dated 24.02.09(8%) and 6/10-CE dated 27.02.2010(10% were issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any one notification which is beneficial to him. In this case, Notification No. 2/08-CE as amended provided for General tariff rate of duty and Notification No. 4/06-CE 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 CBEC Excise Manual. In fact, this confusion has arisen since in this case the General tariff rate was reduced through Notification when special economic stimulus package was announced in 2008 by Government to deal with ongoing economic recession. Normally changes in General tariff rate are carried out through Finance Bill / Act. Government, therefore is of the view that duty was payable @4%/5% on the export goods also and rebate cannot be granted on the duty paid in excess of effective rate prescribed in the Notification No. 4/06-CE dated 01.03.06 as amended, as stipulated in the above said CBEC 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. 4/06-CE as amended. The above said CBEC Instructions state that export goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Whereas in the instant case applicant has not chosen one notification for all the clearance but decided to avail benefit of both the notification. 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 credit. In terms of above said judgements also, the applicant is required to choose one notification whereas he has acted otherwise. 8.8 Moreover, the said judgements are not in the context of sanctioning of rebate claims in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/04-CE(NT) dated 6.09.04 of the duty paid either at general tariff rate or at the effective rate. The cited case laws mainly relate to admissibility of exemption notification benefit in case of dispute of classification / eligibility of claimant. None of the said judgement are on the issue of sanctioning rebate of duty paid on exported goods. Hon'ble Supreme Court in paras 10 11 of the judgement in case of Escorts Ltd. vs. CCE Delhi-Il 2004 (173) ELT 113 (SC) observed that circumstantial flexibility, one additional or different fact may make a world of difference between conclusion of two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore said Circular issued prior to the introduction of transaction value concept, cannot be strictly applied after 1.07.2000. As per para 3(b)(ii) of Notification No. 19/04-CE(NT) dated 6.09.04, 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 part. The said para 3(b)(ii) is reproduced below: 3(b) Presentation of claim for rebate to Central Excise: (i) (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. The said provisions of this notification clearly stipulate that after examining the rebate claim, the rebate sanctioning authority will sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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