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TMI Blog2015 (12) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... ir-way bills, etc., under Rule 18 of Central Excise Rules, 2002 read with Section 11B of Central Excise Act, 1944. The rebate sanctioning authority had verified the claims and found that the said assessee have exported the impugned 'bulk drugs', "Paclitaxel Gemcitabine Hydrochloride and Irinotecan Hydrochloride Trihydrate" and claimed rebate of duty paid towards payment of Central Excise duty through the Cenvat credit account. The duty payment has been confirmed by the Range Superintendent and on that basis the Assistant Commissioner, Kalyani Division sanctioned the 8 (eight) rebate claims amounts in cash through account payee cheques. 3. The order of the Assistant Commissioner was reviewed by the Department. The department filed appeal before Commissioner, Central Excise (Appeals), who vide Order-in-Appeal No. 03-10/Kol-III/2013, dated 18-8-2011, set aside the Orders-in-Original passed by the Assistant Commissioner, Central Excise, Kalyani Divison and allowed the appeals filed by the Department. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicant has filed these revision applications under Section 35EE of the Central Excise Act, 1944 before the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E operated in different fields and were invoked for different purposes. That the Asian Paints Ltd.'s case is distinguishable from the cases cited as held by the Tribunal in the case of Pricol Limited - 2007 (213) E.L.T. 41. 4.6 That the impugned order of the Commissioner (Appeals-1) is a non-speaking one. He has not dealt with all the cases referred to in the written note submitted during personal hearing. That at the hearing the applicant referred to the Circular No. 423/56/98-CX, dated 22-9-1998 vide which the C.B.E. & C. had clarified that the demand for recovery or erroneous refunds has to be made under Section 11A of the Act within the prescribed limitation period. That it is settled position that the Circular issued by the Board are binding on the Departmental authorities. 4.7 That the Department could not produce any evidence to the effect that the impugned exports were finished goods and used as drugs or medicines. Instead the department accepted that the impugned bulk drugs were cleared to the manufacturers of drugs or medicines for use in the manufacture of drugs or medicines, that the Commissioner (Appeals-1) should not have allowed the appeals filed by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Appeal. 7. Upon perusal of records, Government observes that the respondent had exported impugned 'bulk drugs', Paclitaxel, Gemcitabine Hydrochloride and Irinotecan Hydrochloride Trihydrate under Rule 18 ibid upon payment of duty through Cenvat credit account. The rebate was sanctioned in cash vide eight impugned Orders-in-Original all dated 18-8-2011 by the Assistant Commissioner. The Department upon review of the impugned orders contended that by virtue of Notification No. 4/2006-C.E., dated 1-3-2006 issued under Section 5A of the Central Excise Act, 19447 the impugned goods attract 'nil' rate of Central Excise duty; hence any payment of duty on these goods was irregular in violation of Section 3 ibid and Rules 5 and 6 ibid read with Notification No. 4/2006-C.E., dated 1-3-2006, therefore, rebate in those cases was irregular and is required to be paid back. The Commissioner (Appeals) vide impugned Order-in-Appeal No. 03-10/Kol-III/2013, dated 15-2-2013 held that as the goods were exempted, any amount which is not payable in terms of Section 3 read with Section 4 ibid does not have the character of duty and were not eligible for rebate under Rule 18 ibid. He ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a bulk drug can be used as such or as an ingredient in any formulation. Any bulk drug which features in List 3 or List 4 appended to Notification No. 21/2002-Cus., dated 17-3-2002 will be exempted unconditionally. However, any other bulk drug if used further in manufacture of any drugs or medicines listed in List 3 or List 4 is exempted only subject to fulfilment of prescribed condition. 10.1 In the present case, it is an undisputed and admitted fact in the grounds of appeal that the impugned goods are specified in List 3 and List 4 of Notification No. 21/2002-Cus., dated 1-3-2002. Therefore, there is no room for doubt that these goods are unconditionally exempt from payment of duty. 11. Government's views also find support in the decision of the Tribunal in plethora of cases as relied upon in the impugned Order-in-Appeal wherein it has consistently been held that drugs include bulk drugs and if impugned goods figure in List 3 or 4, they are entitled to exemption extended to goods against Description A of Sl. No. 47 unconditionally. 12. Government also observes that the applicant has relied on several judgments of various Courts that the assessee has the choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iram Textile Mills (P) Ltd., 1995 (86) E.L.T. 581 (Tri.), held that appeal filed by Department before Collector being continuation of main proceedings, fresh demand is not required to be raised. In the present case, the proceedings of admissibility of rebate have already been initiated by the impugned Order-in-Original and thereafter carried forward under Section 35E. 15.3 Government also finds support in the decision of the Tribunal in the case of CCE, Bangalore v. Raman Boards Ltd. - 1985 (22) E.L.T. 892 (Tribunal), as under : "We therefore, hold that Section 11A and Section 35E operate entirely in different fields with different objectives and purposes. Therefore, Section 11A cannot be telescoped or super-imposed over Section 35Ewith an overriding effect. Thus, the Collector of Central Excise can exercise the powers of correctional jurisdiction by way of suo motu revision in terms of Section 35E(2) against an order passed by an adjudicating authority subordinate to him either in respect of an order passed after the issuance of a show cause notice within a period of six months or an order passed without the issuance of any show cause notice. The issuance or otherwise of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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