TaxTMI 
TaxTMI 
2013 (7) TMI 185
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....)/Ahd. dated 16-11-2010 16-39 195/285-308/11-RA 13-36/2011(Ahd.-II)CE/CMC/Commr.(A)/Ahd. dated 31-1-2011 40-42 195/327-329/11-RA 306-308/2011(Ahd.-II)CE/CMC/Commr.(A)/Ahd. dated 31-12-2010 43 195/330/11-RA 60/2011 (Ahd.-II)CE/CMC/Commr.(A)/Ahd. dated 4-2-2011 44-53 195/523-532/11-RA 87-96/2011 (Ahd.-II)CE/CMC/Commr.(A)/Ahd. dated 28-2-2011 54-62 195/574-582/11-RA 115-123/2011 (Ahd.-II)CE/CMC/Commr.(A)/ Ahd. dated 31-3-2011 63-65 195/632-634/11-RA 133-135/2011 (Ahd.-II)CE/CMC/Commr.(A)/ Ahd. dated 28-4-2011 66-81 195/799-814/11-RA 149-164/2011 (Ahd.-II)CE/CMC/Commr.(A)/ Ahd. dated 17-6-2011 82-101 195/1015-1034/11-RA 177-196/2011 (Ahd.-II)CE/CMC/Commr.(A)/ Ahd. dated 18-7-2011 102-119 195/1125-1142/11-RA 245-262/2011 (Ahd.-II)CE/CMC/Commr.(A)/ Ahd. dated 10-8-2011 120-129 195/1145-1154/11-RA 297-306/2011 (Ahd.-II)CE/CMC/Commr.CA)/ Ahd. 25-8-2011 130-157 195/1300-1327/11-RA 326-353/2011(Ahd.-II)CE/CMC/Commr.(A)/Ahd. 4-10-2011 158-163 195/119-124/12-RA 356-361/12/2012 (Ahd.-II)CE/MM/Commr.(A)/ Ahd. of CCE(A)Ahd-I 25-11-2011 164-167 195/387-390/12-RA 01-04/12/2012(Ahd.-I....
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....ioned the rebate claims of duty paid @ 4% + Cess, on the FOB value treating the said value as transaction value under Section 4 of Central Excise Act after excluding the value of free goods. The balance amount of duty paid on the exported goods was treated as excess paid duty and therefore the said amount was allowed to be re-credited to their Cenvat credit account. 3. Being aggrieved by the said orders-in-original, applicants filed appeal before Commissioner of Central Excise (Appeals) who after considering all the submissions, upheld the impugned orders-in-original and rejected the appeals of the applicants. 4. Being aggrieved by the impugned orders-in-appeal, the applicant have filed these revision applications under Section 35EE of the Central Excise Act, 1944 before Central Government on the following grounds : 4.1 In respect of Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, the Indian Parliament has floated two different Notifications, namely (1) Notification No. 4/2006-C.E., dated 1-3-2006, with Sl. Entry No. 62-C, whereunder. Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, are chargeable to total Central Excise D....
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..../2010-CX., dated 26-11-2010 already stand over-ruled by the decision of the Hon'ble CESTA Tribunal in the case, titled as HYVA (India) Pvt. Ltd. v. CCE, Belapur - 2010 TIOL-1410-CESTAT-MUM. 4.7 The Central Excise Duty, as per Sl. Entry No. 84 of the List (1) or Union List of the 7th Schedule to the Constitution of India, 1950, is leviable on the goods, manufactured or produced in India and therefore, it is a Tax, on the activity, called as, manufacture of goods, such goods, called as, excisable goods, specified in the Schedule to the Central Excise Tariff Act, 1985, read with. Section 2(d) of the Central Excise Act, 1944 and accordingly, Central Excise Duty is payable by the Manufacturer on the excisable goods, produced by him, even when supplied as free goods or free samples and under the Central Excise Law, Sale or Purchase or payment for goods, is all immaterial and once Central Excise Duty is paid, even on free goods, which are exported, rebate is to be sanctioned. 4.8 It is not understandable, how the department of Central Excise, came to a conclusion that for sanction of rebate claim, the lower value, appearing in one of the two documents, namely, ARE-1 (Section 4 value....
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.... as amended. Prior to the Budget, 2010, applicants were also clearing the export goods on payment of duty @ 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended, but after budget 2010, they started paying duty on export clearances at 10% under Notification 2/2008-C.E., dated 1-3-2008 as amended and filed rebate claims under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The original authority sanctioned the rebate claims to the extent of duty paid @4% and allowed re-credit of balance amount in their Cenvat credit account. At the same time the duty paid on free goods for which no foreign remittances were to be received, and also the duty paid on portion of value which was in excess of transaction value determined under Section 4 of Central Excise Act, 1944 was allowed to be re-credited in their Cenvat credit account. In appeal, Commissioner (Appeals), upheld all the orders-in-original passed by original authority and rejected the appeals of the applicants. Now the applicants has filed these revision applications on the grounds stated in para 4 above. 9. Applicants have contended that both the said notificati....
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....bha on 29-2-2008. In paras 1, 2 & 3, he informed as under :- "1. Central Excise 2. General Cenvat Rate : Notification No. 2/2008-C.E.) 2.1 The genera rate of excise duty (CENVAT) has been reduced from 16% to 14%. This reduction applies to all goods that hitherto attracted this general rate of 16%. In some cases, a deeper reduction has been made, the details of which are indicated in the subsequent paragraphs. These changes have been carried out by notification. The other ad valorem rates of 24%, 12% and 8% have been retained. 2.2 Since the reduction in the general rate has been carried out by notification, the possibility of the same product/item being covered by more than one notification cannot be ruled. In such a situation, the rate beneficial to the assessee would have to be extended if he fulfils the attendant conditions of the exemption. 3. Drugs and Pharmaceuticals 3.1 Excise duty on drugs and pharmaceuticals falling under Heading Nos. 3001, 3003 (except Menthol crystals), 3004, 3005 and 3006 (except 3006 60 and 3006 92 00) has been reduced from 16% to 8%. Thus, the general effective rate for all goods of Chapter 30 is now 8%. However, certain specified ite....
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....ed in the light of these instructions. As explained in Para 9.1 above. Notification No. 2/2008-C.E., dated 1-3-2008 prescribed General Tariff rate of duty @ 10% which was in fact brought down from 16% to 14% and then to 10% by different notifications. The notification No. 4/2006-C.E., dated 1-3-2006 as amended prescribed effective rate of duty @ 4%. 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 any one notification which is beneficial to him. In this case, Notification No. 2/2008-C.E. providing for General Tariff rate of duty and Notification No. 4/2006-C.E. providing for effective rate of duty have the effect of prescribing General Tariff rate and effective rate of duty respectively and therefore they have to be read together as stipulated in para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual. In fact, this confusion has arisen since in this case the General tariff rate was reduced through Notification when special economic stimulus package was announced in 2008 by Government to deal with ongoing economic recession. Normally changes in General Tariff rate are carried out through Finance ....
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....se laws to the proposition that it was upto the assessee to choose a notification which is most beneficial to him. Government notes that in the cases cited namely CCE, Baroda v. Indian Petro Chemicals and HCL Ltd. v. CC, New Delhi, Hon'ble Supreme Court has held that when two notifications co-exits simultaneously, then assessee has the option to choose any one of the notifications beneficial to him. Hon'ble Apex Court has categorically held that in such a situation assessee has option to choose any one notification and Apex Court has not stated that assessee can avail both the notifications simultaneously. Whereas in the instant case applicant has not chosen one notification for all the clearance but decided to avail benefit of both the notifications. The apparent motive of clearing export goods at higher rate of duty @10% and goods for home consumption at 4% is to encash the accumulated Cenvat credit. In terms of abovesaid judgments also, the applicant is required to choose one notification whereas he has acted otherwise. Moreover, the said judgments are not in the context of sanctioning of rebate claims in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. ....
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....by opting for payment of duty. 9.7.2 Hon'ble Supreme Court has also held in the case of M/s. Belapur Sugar and Allied Industries Ltd. v. CCE - 1999 (108) E.L.T. 9 (S.C.) that even if duty paid under ignorance of law or otherwise, the rebate cannot be refused since party has paid the duty. Further, Hon'ble Apex Court has held that if the duty paid shown to be not leviable or entitled for rebate, the revenue has to refund, adjust, credit such amount to the assessee as the case may be. 9.7.3 Government also notes that Hon'ble High Court of Punjab & Haryana has examined the identical issue in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI - 2009 (235) E.L.T. 22 (P & H) wherein assessee had paid duty on export goods at tariff rate of 16% ignoring the exemption Notification No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 prescribing duty @ 4% and nil respectively. Hon'ble High Court has upheld the Government of India Revision Order upholding the order of original authority. In this case, original authority had allowed rebate of duty paid at effective rate of 4% and allowed recredit of balance amount in the Cenvat credit account of assessee. 9.8 Applicants have r....
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....ar dated 28-7-2004. In case of home consumption clearance, no Cenvat credit was availed and clearances were made at nil rate. Assessee was also maintaining separate accounts for both types of clearance as required in the C.B.E. & C. Circular. Government did not allow rebate of duty paid at tariff rate @ 16% but rebate claim was allowed of the duty paid at the effective rate of 4% in terms of Notification No. 29/2004-C.E. 10. In view of position explained in foregoing paras 8 & 9, Government finds that there is no merit in the contentions of applicant that they are eligible to claim rebate of duty paid @ 10% i.e. tariff rate ignoring the effective rate of 4%. Government is of the considered view that lower authorities are legally right in holding that duty was payable @ 4% in terms of exemption Notification No. 4/2006-C.E., dated 1-3-2006 as amended and rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% in terms of Notification No. 4/2006-C.E., dated 1-3-2006. 11. Applicant has contended that rebate of duty paid cannot be denied on the goods supplied free as samples. The free sample has no commercial value as they are supplied free to th....
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....eration." 12.3 Place of Removal has been defined under Section 4(3)(c)(i), (ii), (iii) as : (i) A factory or any other place or premises of production of manufacture of the excisable goods; (ii) A warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) A Depot, Premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory. 12.4 The Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 is also relevant which is reproduced below :- "Rule 5. Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the excisable goods are sold for delivery at a place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal upto the place of delivery of such excisable goods. Explanation 1. - "Cost of transportation" includes - (i) The actual cost of transportati....
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....introduction of transaction value concept, cannot be strictly applied after 1-7-2000. As per para 3(b)(ii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, 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. The said para 3(b)(ii) is reproduced below : "3(b) Presentation of claim for rebate to Central Excise :- (i) ............................................ (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part." The said provisions of this notification clearly stipulate that after examining the rebate claim, the rebate sanctioning authority will sanct....