TaxTMI 
TaxTMI 
2013 (3) TMI 209
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....otification No. 46/94-C.E., (N.T.), dated 22-9-1994 and Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 12 of erstwhile Central Excise Rules, 1944 and Rule 18 of Central Excise (No. 2) Rules, 2001 respectively. The balance duty was adjusted against the Bond executed under erstwhile Rule 13 of Central Excise Rules, 1944 and Rule 19 of Central Excise (No. 2) Rules, 2001. The conditions of the Notification No. 46/94-C.E. (N.T.) allowed rebate of duty only to certain foreign countries having land frontiers with India. These countries do not include Nepal. Hence it appeared that the supply of ATF to Nepal bound Flight should be on payment of appropriate rate of duty i.e. 16% ad valorem. Therefore, Show Cause Notices were issued from time to time demanding the differential duty. The lower authority, by the impugned orders, confirmed the demands and imposed penalties. Being aggrieved, the applicant filed appeals with the Commissioner (Appeals). These appeals were rejected by Commissioner (Appeals) vide Order-in-Appeal No. PD/108 to 111/M-IV/2003, dated 30-6-2003. The appellants preferred a Revision Application before the Govt. of India, who vide Order No. 180-183/2....
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....fication No. 46/94-C.E. (N.T.), although Afghanistan was excluded under Clause (i) in the said Notification, (iv) Collector (Appeals), vide Order-in-Appeal No. 290/Cal.II/1987, dated 15-7-1987 had allowed rebate on ATF supplied to Nepal bound flights based on executive instructions contained in O.M. No. 35022(21)/74-FSP(PTS), dated 3-2-1975 forwarded under Ministry of Finance letter F. No. 481/7/75-Cus.VII, dated 7-2-1975. 4. The Commissioner Central Excise (Appeals) passed a detailed Order and rejected the appeals of the applicant. The relevant operating part of the Orders-in-Appeal is reproduced below : "I have carefully considered the written and oral submissions made by the appellants. I have also considered the relevant provisions of law. During the period under dispute, export of excisable goods under bond to Nepal or Bhutan was governed by Notification No. 51/94-C.E. (N.T.), dated 22-9-1994, as amended subject to following the conditions and procedures enumerated therein. The conditions and procedures include that them in Nepal or Bhutan, as the case may be, shall open an irrevocable letter of credit in favour of the exporter in India, before the export t....
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....-2-1975. In this letter, it has been requested that the authorities concerned at Delhi and Calcutta may be advised to allow re-fuelling of Royal Nepal Air Corpn. aircrafts just like any other international airline. The issue covered in this letter relates to supply of fuel in bond. A reading of this letter indicates that it relates only to Royal Nepal Air Corpn. aircrafts and that too operating from Delhi and Calcutta. Under the letter, no leverage has been given to re-fuelling of RNAC aircrafts at Patna. There is no mention about Mumbai in this letter. Hence, by no stretch, the contents of the letter can be made applicable to the appellants present case nor the Notification can be amended by any administrative guidelines. Notification No. 203/67-Central Excise was superseded by Notification No. 46/94-C.E., which clearly excludes Nepal. In any event, the rebate of excise duty has to be claimed and allowed by the competent authority. The appellants can not on their own adjust the duty amount. The Supplementary Instruction on Excise Manual have been issued by the Board on 1-9-2001. The period covered by the impugned Show Cause Notices is from August 1997 to June 2001. The instruction....
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.... (220) E.L.T. 324 (T), has allowed the rebate on the supplies made to Nepal bound aircrafts. Similarly Commissioner (Appeals), vide Order-in-Appeal No. 290/Cal II/B7, dated 15-7-1987 in IOCL's own case had held that supplies of ATF to Royal Nepal Air Corporation's flights are eligible for rebate; 5.4 Since the said Govt. of India's Order Nos. 52-58/1999, dated 30-6-1999; Order-in-Appeal No. 290/Cal.II/1987, dated 15-7-1987 and Tribunal Order in IOCL's own case have not been challenged by the Dept., now the Dept. cannot take a contrary stand in subsequent proceedings, based on the following judgments : (a) 2007 (209) E.L.T. 161 (S.C.) - Novapan Industries (b) 2006 (202) E.L.T. 389 (S.C.) - Boving Fouress 5.5  Government of India's said Order dated 30-6-1999 Interprets Notification No. 46/94-C.E. (N.T.) and on invoking the administrative instructions, rebate was allowed and, hence, none of the findings of Commissioner (Appeals) in the present case would sustain. The rebate is admissible under Notification No. 51/94-C.E. (N.T.), dated 22-9-1994. In the clearance of ATF, without payment of duty, without such restriction avai....
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....ir, Advocate attended the hearing on behalf of the applicant and reiterated the grounds of revision application. Shri Vikas Nair, Deputy Commissioner attended the hearing on behalf of the respondent and pleaded for upholding of impugned orders-in-original and orders-in-appeal. 9. Government after due re-consideration of all the records/proceedings as held so far finds itself duty bound for following the principals of judicial discipline and complying with the directions and order dated 26-7-2011 of the Hon'ble High Court of judicature at Bombay, and notes that these matters are necessarily required to be considered and decided within the ambit and scope of "administrative instructions issued by Government of India, vide C. No. dated 4-4-1949, M.F. (D.R.) No. 32/CX/1949, dated 5-1-1950, F. No. 14/4-CX(i)54, dated 5-9-1951 and 14/13-CX/1949, dated 18-2-1950"on the same lines as were decided in G.O.I. Final Order No. 52-58/1999, dated 30-6-1999. 10. Here Government cannot restrain itself from expressing its anguish that the department's representative Sh. Vikas Nair, Deputy Commissioner, K-I Division, Mumbai while appearing on behalf of the respondent Commissioner has stil....