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P.R. Chemicals Versus Union Of India & Anr.

2016 (9) TMI 528 - DELHI HIGH COURT

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, the Central Government appears to have relied entirely on the textual .....

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rity 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 dated 13.05.2014, rejecting the rebate claim for a sum of ₹ 1,15,58 .....

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o 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 revision under Section 35 EE of the Central Excise Act which was allowed by .....

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tween 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 this Notification reads as under :- "That the rebate of duty pai .....

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, 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 Rule 8 of Pan Masala Packing Machines (Capacity Determination and Co .....

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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 interpretational aspects but it does not mean that the provisions of the re .....

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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 exported by the respondent after issuance of clarification by Chief Comm .....

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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 Court or even by Ministry of Environment and Forests vide standing o .....

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criminating 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 Notice No. 20/2011, dated 20-9-2011 issued on the basis-of C.B.E. &am .....

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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 further held that department's actions have to be consistent with .....

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nt 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 01.07.2011. Concededly, notification prohibiting manufacture of plasti .....

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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 Customs Act in this regard is of some relevance. 5. During the hearing l .....

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