TaxTMI 
TaxTMI 
2014 (12) TMI 950
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....edly under Notification No. 2/2008 as amended and filed rebate claims of the duties so paid. The adjudicating authority, however restricted the rebate to the extent of 4% of duty i.e. the rate of duty payable under Notification No 4/2006 as amended 3. Being aggrieved by the said Orders-in-Original, applicant filed appeals before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicant has filed these revision applications under section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 A careful reading of Section 5A(1A) of the Central Excise Act 1944 will indicate that the 'bar' sought to be imposed on an appellants by the legislature is as regards their foregoing an absolute exemption [viz. exemption from the whole of duty of excise leviable] and paying duty on their own violation. There is nothing in the sub-section to even remotely suggest that the appellants has to compulsorily pay duty at a lesser rate if another exemption notification prescribing a higher rate of duty (obviously less than the Tariff rate) simultaneously exists. It is also well settled by the Supreme Co....
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.... submitted that the authority at the Maritime Commissionerate cannot re-open the assessment and reassess the amount as not duty. The appellants rely upon the various judgments. 4.6 The Assistant Commissioner has also rejected the rebate claim in respect of samples. It has been observed that the duty paid on free samples is cleared for export. The declared ARE-1 value includes the value of free samples having no commercial value. Since, the market price of the samples is nil, the refund claim has been rejected. It is submitted that the Assistant Commissioner has erred in coming to the conclusion that the market price of the samples are nil. It is submitted that the samples are not meant for sale-in retail. They are meant for giving free to doctors as promotional measure. This does not mean that the market price of the product is nil. Section 4(1)(a) provides for determination of value. It provides for levy of duty on transaction value when the goods are sold in the market. In. case goods are not sold in the market, section 4(1)(b) comes into operation and the value is required to be determined in terms of the Valuation Rules. It is submitted that the basic thrust of the rule is t....
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....tion No. 19/2004-CE(NT) dated 06 09.2004. The manufacturers had paid duty on said exported goods @ 10% under Notification No. 2/08-CE dated 01.03200 & as amended. Similarly the manufacturers had cleared said goods for home consumption on payment of effective rate of duty @ 4% upto 28.02.11 and @ 5% w.e.f. 01.03.11. The 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% 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%.The Original authority also rejected the rebate claims involved on free samples. The Commissioner (Appeals) upheld the impugned Orders-in-Original. Now, the applicants have filed these revision applications against the impugned Orders-in-Appeal on the grounds stated above. 8. The applicants have contended that both the said notifications have approval of Parliament and therefore they are at liberty to avail any notification which ever they find beneficial to them. Therefore they have claimed to be eligible for rebate of duty paid on export goods @10% in terms of Notification No. 2/08....
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.... paragraphs. These changes have been carried out by notification. The other advoloremrates of24%, 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 assesee 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(export Menthol crystals), 3004, 3005 and 3006 (except 300660 and 30069200) has been reduced from 16% to 8%. Thus, the general effective rate for all goods of Chapter 30 is now 8%. However, certain specified items such as lifesaving drugs continue to be fully exempt. Excise duty has been fully exempted on Anti AIDS drug , ATAZANA VIR, and bulk drugs for its manufacture. The Joint Secretary (TRU) CBEC has made it amply clear that reduction in General Tariff Rate has been carried out by Notification and therefore there could be a possibility of same item being covered by two notifications and directed that the rate beneficial....
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....117 ............. 118: .......... 119. ............ 120. With .............further convergence of central excise duty rates to a mean rate - currently 8 per cent. I have reviewed the list of items currently attracting the rate of 4 per cent, the only rate below the mean rate. There is a case for enhancing the rate on many items appearing in this list to 8 per cent, which I propose to do, with the following major exceptions: food items; and drugs, pharmaceuticals and medical equipment. Some of the other items on which I propose to retain the rate of 4 per cent are paper, paperboard& their articles; items of mass consumption such as pressure cookers, cheer electric bulbs, low priced footwear, water filers / purifiers, CFL etc.: power driven pumps for handling- water and paraxylene." Further, the Hon'ble Finance Minister in his speech while presenting the Union Budget for 2010-11 in the Parliament stated that: "PART- B INDIRECT TAXES 142. Unlike the time I presented the last Budget, symptoms of economic recovery are more widespread and clear-cut now. The three fiscal stimulus packages that the Government introduced in quick succession have helped the process of recovery sig....
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....ctive 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. In fact, this confusion has arisen since in ,this case the Gener....
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....er importance than winning or losing court proceedings. In view of said principles laid by Hon'ble Supreme Court, Government upholds the applicability of above said CBEC Instructions in this case. 8.7 Applicant has relied upon number of case laws to the proposition that it was upto the assesse to choose a notification which is most beneficial to him. GOI order in case of M/s. Bhagrath Taxtile Ltd: 2006(2002) E. L.T 147 (GOI) relied upon by the applicant is not relevant in the impugned case as the fact of this case are different. Government notes that in the case cited namely CCE Baroda vs. India Petro Chemicals 1997(92) ELT 13(SC), the Hon'ble Supreme Court has held that when two notifications co-exit simultaneously, the, assessee has the option to choose anyone of the notifications beneficial to him. Hon'ble Apex Court has categorically held that in such a situation assessee has option to choose anyone notification. Apex court has not stated that assessee can avail both the notifications simultaneously. a. Whereas in the instant case applicant has not chosen one notification or all the clearance but decided to avail benefit of both the notification. The above said ....
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....d therefore exemption under notification is, as if it were contained in the Act itself. Apex Court has clearly observed that any exemption notification specifying effective rate has to be complied with. In this regard, Hon'ble CESTAT Ahmedabad Bench in its judgement in the case of Mahindra Chemicals vs. CCE Ahmedabad 2007 (208) ELT 505 (T. Ahd.), while relying on above said Apex Court judgement has held that exemption notification has to be construed as if this rate was prescribed by statute and when the legislature has decided to exempt certain goods by notification, the exemption cannot be negated by an assessee by opting for payment of duty. 9. In view of position explained in foregoing paras, Government finds that 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 ....