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2016 (9) TMI 528 - DELHI HIGH COURT

2016 (9) TMI 528 - DELHI HIGH COURT - 2016 (342) E.L.T. 164 (Del.) - Rebate claim - Rule 18 of the Central Excise Rules read with notification no. 32/2008-CE (N.T.) dated 28.08.2008, between 07.06.2011 and 1.07.2011 - articles exported prior to coming into force of the Plastic Waste Management and Handling Rules, 2011 which was on 02.07.2011 - Held that:- the view taken by the Central Government in P.R.Chemicals [2015 (1) TMI 666 - GOVERNMENT OF INDIA] is the correct one. Instead in this case, t .....

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impugned order cannot be sustained. The order of the appellate authority is restored. - Writ petition allowed - W.P.(C) 270/2015 - Dated:- 23-8-2016 - MR. S. RAVINDRA BHAT & MS. DEEPA SHARMA JJ. Petitioner Through: Dr.Ashutosh, Mr. S.S. Arora and Ms. Harsimran Kaur, Advocates Respondents Through: Mr.Sanjeev Narula, CGSC with Mr.Abhishek Ghai and Mr.Ajay Kalra, Advocates for UOI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. The writ petition challenges the order of the Central Government date .....

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ppellate authority held that since the articles were exported prior to coming into force of the Plastic Waste Management and Handling Rules, 2011 which was on 02.07.2011 the rebate claims could not have been rejected. The appellate commissioner also incorporated the CBEC circular of 30.08.2011 and held that rules were retrospective and consequently, the conditions for seeking rebate could not be said to have amended prior to 02.07.2011. The concerned departmental authorities preferred the revisi .....

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ated the rebate claim on account of admitted exports that occurred between 07.06.2011 and 01.07.2011. In support of the submissions, learned counsel relied upon the revisional order of the Central Government IN RE: P.R. CHEMICALS 2014 (314) E.L.T. 942 (G.O.I.). The relevant portion of the said decision is as follows: 3.3 The party has claimed the rebate of duty under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 but the Condition (g) of .....

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ng the plea that instruction dated 4-3-2011 by the Chief Commissioner, Central Excise, Lucknow Zone in the form of letter C. No. V(30) CCO/LKO/Tech/26/2011, dated 4-3-2011 may be one of the factors which may be considered while deciding the instant case. However, this letter cannot override the Rules and Sections pertaining to the issue. The Commissioner (Appeals) himself held in the concluding para of his Orderin-Appeal that "Section 3A of the Central Excise Act overrides the provisions of .....

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spective effect. This finding is not correct as the law i.e. Plastic Waste (Management & Handling) Rules, 2011, dated 4-2-2011 was in existence when the export took place and therefore any clarification issued subsequently would have no bearing and the party would not be able to escape from the statutory provisions of Plastic Waste (Management & Handling) Rules, 2011, dated 4-2-2011. Any circular and subsequently issuance of a trade notice on the basis of the same only facilitates interp .....

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er proper permissions and departmental clarifications on the subject matter. xxxx xxxx xxxx xxxx 10. Applicant department has contended that in view of Condition 3(g) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate of duty paid on excisable goods, export of which is prohibited under any law for the time being in force cannot be granted since Gutkha manufactured by respondent was exported in plastic sachets/material. In this regard Government notes that the said goods were exp .....

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urt or even by Ministry of Environment and Forests, vide its standing order of 4th February, 2011 would not be applicable to cases and consignments for export. Even otherwise, there are instructions of the government, issued from time to time, that in matter of exports no unwarranted and unjustified restrictions should be imposed. Therefore, flow of consignments meant for exports should not be got interrupted." It was clearly stated in the said letter that ban ordered by Hon'ble Supreme .....

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owed and no such objection has ever been raised and department is discriminating against him by proposing recovery of already sanctioned claims. Matter was checked up from the applicant department who vide letter F. No. IV-853/R/O/2011, dated 23-11-2012 stated that another exporter M/s. Pan Parag India Ltd., Kanpur had exported Pan Masala/Gutkha in sachets of plastic upto August, 2011 and rebate claims of duty paid on exported goods was allowed upto that period. 10.3 Government notes that Trade .....

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-9-2004. 10.4 Government also notes that departmental authorities are bound by Circular/Instruction and they have to comply with the same. Hon'ble Supreme Court has held in the case of Paper Products Ltd. v. CCE - 1999 (112) E.L.T. 765 (S.C.) that Circular/Instructions issued by C.B.E. & C. are binding on departmental authorities. They cannot take contrary stand and department cannot repudiate a Circular on the basis that it was inconsistent with the statutory provision. Apex Court has f .....

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urged that the loading of goods for export would be the relevant point of time which would be reckoned for the purpose of export. In support of this submission learned counsel relied upon the decision of the Madras High Court in 1985 (12) TMI 234 /1987 (28) E.L.T. 266 (Mad.)- Lucas TVS, Madras versus Assistant Collector Of Customs, Madras And Others. 4.The facts in this case are extremely limited and uncontroverted. The clearance of the goods occurred in 27 consignments between 07.06.2011 and 0 .....

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lmost identical facts and powers seems to have (see in P.R.Chemicals s case (supra) ) taken the view that (a) notifications is not retrospective and (b) that it cannot be applied for consignments that were cleared prior to 02.07.2011. As far as the textual interpretation to export goes, the revisional authority in this case construed the meaning of the term based on its common grammatical connotation rather than on analysis of other parts of the statute i.e. the Custom Act. Section 51 of the Cus .....

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