2015 (1) TMI 805 - CGOVT - Central Excise

Rebate Claims Limited to Effective Duty Rates

M/s Cipla Ltd Mumbai & others Versus CCE, Raigad/Mumabi-III/Mumabi-I

The government upheld that rebate claims are only admissible at the effective duty rate (4%/5%) under Notification No. 4/06-CE, not the general tariff ... Rebate claim - payment of duty on export goods at higher rate - Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-CE(NT) dated 06.09.2004 - manufacturers had cleared said goods for home consumption on payment effective rate of duty @ 4% upto 28.02.11 and @ 5% w.e.f. 01.03.11 under Notification No. 4/2006-CE dated 01.03.2006 as amended - original authority after following due process of law, held that duty was required to be paid on exported goods at the effective rate of duty @ 4%/5% in terms of Notification No. 4/2006-CE dated 01.03.2006 as amended and sanctioned the rebate claims to the extent of duty payable @ 4%/5%. Held that:- Further the classification and rate of duty should be as stated in schedule of Central Excise Tariff Act, 1985 read with any exemption notification and /or Central Excise Rules, 2002. The CBEC instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. While sanctioning rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of the instructions. As explained above, Notification No. 2/08-CE dated .1.03.08 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. 4/06-CE dated 1.03.06 as amended prescribed effective rate of duty from initial rate of 0% to 8%, 8% to 4% and finally to 5% 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 anyone 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. Both the Notifications prescribed effective rates of duty. Notification No. 30/04-CE prescribed nil rate of duty provided manufacturer does not avail cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular 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. 937/27/2010-0X dated 26.11.10 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944. Applicants have relied upon CBEC circular No.510/06/2000-Cx dated 3.2.2000.In this regard, the Government observes that w.e.f. 1.7.2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act and therefore 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. - There is no merit in the contentions of applicants that they are eligible to claim rebate of duty paid @10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @4% or 5% in terms of exemption notification No.4/06-CE dated 1.03.06 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No.4/06-CE dated 1.03.06 as amended, as applicable on the relevant on the transaction value of exported goods determined under section 4 of Central Excise Act, 1944. As such the excess paid amount/duty is required to be returned to the respondent in the cenvat credit account of the concerned manufacturer subject to compliance of provisions of Section 12(B) of Central Excise Act 1944. The impugned orders-in-appeal are modified to this extent. - Appeal disposed of. Issues Involved:1. Eligibility for rebate claims of duty paid on exported goods.2. Applicability of multiple notifications and the choice of beneficial notification.3. Assessment of export goods at effective duty rates.4. Jurisdiction of rebate sanctioning authority in questioning duty assessment.5. Refund of excess duty paid and its mode of return.Issue-wise Detailed Analysis:1. Eligibility for Rebate Claims of Duty Paid on Exported Goods:The applicants filed rebate claims under Rule 18 of the Central Excise Rules, 2002, read with Notification No. 19/2004-CE(NT). The manufacturers paid duty on exported goods at 10% under Notification No. 2/08-CE, while for home consumption, they paid 4%/5% under Notification No. 4/2006-CE. The original authority and the Commissioner (Appeals) sanctioned the rebate claims only to the extent of 4%/5%, the effective rate of duty.2. Applicability of Multiple Notifications and the Choice of Beneficial Notification:The applicants argued that both notifications co-exist without excluding each other, allowing them to choose the more beneficial one. They cited several judgments, including HCL Ltd. vs. Collector of Customs, which supports the principle that an assessee can choose the exemption providing greater relief. They contended that the absence of a provision excluding the other notification in either Notification No. 4/2006 or Notification No. 2/2008 allows them to opt for the 10% duty rate for rebate claims.3. Assessment of Export Goods at Effective Duty Rates:The government observed that Notification No. 2/08-CE aimed to reduce the general tariff rate, while Notification No. 4/06-CE prescribed effective rates. The export goods should be assessed similarly to goods for home consumption, as per CBEC instructions. The effective rate of 4%/5% should apply, not the general tariff rate of 10%. The government emphasized that the duty on exported goods should be at the effective rate prescribed in Notification No. 4/06-CE.4. Jurisdiction of Rebate Sanctioning Authority in Questioning Duty Assessment:The applicants claimed that the rebate sanctioning authority cannot question the duty assessment on export consignments. They argued that the authority's role is to sanction the rebate based on the duty paid, not to reassess the duty amount. The government, however, noted that the rebate sanctioning authority must ensure the rebate claim is in order, as stipulated in Notification No. 19/04-CE(NT).5. Refund of Excess Duty Paid and Its Mode of Return:The government clarified that excess duty paid voluntarily cannot be retained and must be returned to the manufacturer. The refund should be in the form of credit in the Cenvat credit account, not cash, as per the judgment in M/s. Nahar Industrial Enterprises Ltd. vs. UOI. The government modified the orders-in-appeal to reflect this, ensuring the excess paid duty is returned appropriately.Conclusion:The government upheld the view that rebate claims are admissible only to the extent of the effective duty rate (4%/5%) under Notification No. 4/06-CE, not the general tariff rate of 10%. The excess duty paid should be refunded in the Cenvat credit account, aligning with the principles established in relevant case laws and CBEC instructions. The revision applications were disposed of accordingly.