TaxTMI 
TaxTMI 
2010 (2) TMI 547
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....e in respect of the exports made by the Company as detailed in Annexure-A to the petition. 4. By virtue of an amendment granted by this Court on 24-12-2009 one more prayer was made by the petitioner praying for quashing and setting aside the Circular dated 8-12-2006 and 3-4-2007 (Annexure-F and Annexure-G respectively to the petition). 5. Special Civil Application No. 12639 of 2008 is filed by Man Industries (India) Ltd., & Anr. making more or less similar prayers. 6. The facts are taken from Special Civil Application No. 12638 of 2008 for the sake of convenience and brevity. 7. It is the case of the petitioners that the petitioner No. 1 Company is engaged in the manufacture and export of various items including Steel Arc Welded Pipes during the period from 8-12-2006 to 16-9-2007. The company being an unit located in Kutch District is entitled to the benefit of Notification No. 39/2001-C.E. dated 8-7-2001. At the time of removal of the goods from the factory for export, the Company paid duty of excise as is evident from the statutory invoices issued by the Company. The Company accordingly applied for rebate under Rule-18 of the said Rules which was granted to the Company until ....
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....f. The denial of rebate is, therefore, illegal and bad in law and contrary to the provisions of Rule-18 of the Rules read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 9. Mr. Trivedi further submitted that Rule-18 of the Central Excise Rules was amended on 17-9-2007 by the amending Notification. The amending Notification was issued by the Central Government in exercise of powers vested under Section-37 of the Central Excise Act. There is no power under Section-37 of the said Act to amend Rule-18 with retrospective effect. The amending Notification, therefore, does not and cannot have retrospective effect and, therefore, the amended provisions of Rule-18 shall not apply to rebate claim made in respect of exports of goods prior to 17-9-2007. He has, therefore, submitted that the petitioners are entitled to rebate in respect of export of the said goods under the unamended Rule-18 as it stood prior to 17-9-2007. 10. Mr. Trivedi further submitted that Section-88 of the Finance Act, 2008 is a beneficial provision and an enabling provision which does not and cannot take away the rights of exporters like the Company for rebate in respect of exports made after 8-12-2006 in vi....
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....and have no nexus with the object and purpose of the amendment to Rule-18 on 17-9-2007. He has, therefore, submitted that there is no justification in denying the rebate claim of the petitioners. 13. Mr. Trivedi further submitted that it is settled law that what cannot be done directly, cannot be done indirectly. By providing for an artificial cut off date of 7-12-2006, retrospective effect is sought to be given to the amendment to Rule-18 vide Notification No. 37/2007-C.E. (N.T.) when in law, the same has and cannot have any retrospective effect. He further submitted that when a statute provides for a language to be done in a particular manner, the same cannot be done in any other manner. Any amendment to the said Rules can be made only by Notification in the official gadget. The two circulars do not have the effect of amending rule since Rule-18 was amended on 17-9-2007 and the Notification amending the same does not have the retrospective effect, rebate on account of export of the said goods between 8-12-2006 and 17-9-2007 cannot be denied to the Company. 14. Mr. Trivedi further submitted that under Rule-12A of the Cenvat Credit Rules, 2002 corresponding to Rule-12 of the Cenv....
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.... further submitted that the Notification No. 39/2001-C.E., dated 31-7-2001 issued under the provisions of Section 5A(1) of the Central Excise Act, 1944 provides for the exemptions from excise duty only to the extent it is in excess of the amount paid out to Cenvat Credit. The said exemption, Notification No. 39/2001-C.E. has been operationalized by way of paying the full amount of duty at the first instance and, thereafter, granting of refund of duty paid in cash. The provisions of Rule-18 operate in respect of the cases of duty paid on exported goods in conformity with the Notification No. 19 of 2004 issued in exercise of the power under Rule-18. The question had then arisen whether the said payment of duty at the first stage which is subsequently refunded can be considered as a duty paid and accordingly the issue was referred to the Ministry of Law and Justice and the Ministry of Law and Justice had opined that the term 'a duty paid' as used in the provisions of Rule-18 does not include that portion of the duty which is subsequently refunded to the manufacturer. A further opinion was rendered to the effect that the amount so refunded to the manufacturer is to be treated as an exe....
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....ent in the said Rules is from 1-3-2002 to 7-12-2006. He has, therefore, submitted that the petitioners have availed the exemption of duty paid from cash/PLA under a Notification No. 39/2001-C.E., dated 31-7-2001 and, therefore, the subsequent and/or the double refund of the same amount cannot be granted as a rebate of duty. He has further submitted that Cenvat credit and the rebate and duty has been provided respectively under the provisions of Cenvat Credit Rules, 2004 and the Central Excise Rules, 2002 respectively and the benefit is available respectively as per the provisions of relevant Rules. He has, therefore, submitted that there is no substance in the prayer made by the petitioners in the present petitions and hence both the petitions deserve to be dismissed. 19. Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of relevant rules, notifications etc., the Court is of the view that the petitioners could not have been denied the benefit of rebates of duty paid by them for the exports made during the period from 8-12-2006 to 17-9-2007. The main ground for denial of benefit of rebate under Rule-18 of the Central ....
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....to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." 21. The grant of rebate under Rule-18 was governed by Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the petitioner No. 1 Company, as a matter of fact was getting rebate upto 7-12-2006 of duty paid on all exports made. However, a deviation was made for the first time on 8-12-2006. The Central Board of Excise and Customs issued a Circular dated 8-12-2006, which reads as under :- "The issue relating to the amount of duty that is to be rebated under Rule-18, in respect of excisable goods manufactured and cleared availing the area based exemption schemes presently available for North East (Vide Not. Nos. 32/99-C.E. and 33/99-C.E. both dated 8-7-1999), Jammu & Kashmir (vide No. Nos. 56/2002 & 57/2002-C.E. both dated 16-11-2002), Kutch (Not No. 39/2001-C.E., dated 31-7-2001) and Sikkim (vide Not. No. 56/2003 dated 25-6-2003) is under examination of the Board." 2. The issue is briefly elucidated. Rule-18 of the Central Excise Rules, 2002, provides for grant of rebate of duty paid on exported goods. In terms of the notifications as mentioned above issued unde....
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....rt of goods which are manufactured by a manufacturer availing the notifications of the Government of India in the Ministry of Finance (Department of Revenue) No. 32/99-Central Excise, dated in 8th July, 1999 (G.S.R. 509(E), dated the 8th July, 1999) or No. 33/99-Central Excise, dated the 8th July, 1999 (G.S.R. 509(E) dated the 8th July, 1999) or No. 39/2001-Central Excise, dated the 31st July, 2001 (G.S.R. 565(E) dated the 31st July, 2001) or notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 56/2002-Central Excise dated the 14th November, 2002 (G.S.R. 764(E) dated 14th November, 2002) or No. 57/2002-Central Excise dated the 14th November, 2002 (GSR 765 (E) dated the 1th4 November, 2002) or notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 56/2003- Central Excise dated the 26th June, 2003 (G.S.R. 513 (E) dated the 25th June, 2003) or 71/2003-Central Excise, dated the 9th September, 2003 (G.S.R. 717(E) dated the 9th September, 2003) or No. 20/2007-Central Excise, dated the 25th April, 2007 (G.S.R 307(E) dated the 25th April, 2007) the rebate shall not be admissible ....