TaxTMI 
TaxTMI 
2015 (1) TMI 666
X X X X Extracts X X X X
X X X X Extracts X X X X
.... said rebate claims vide various Orders-in-Original. Being aggrieved with the, orders the department filed appeals before the Commissioner (Appeals). The Commissioner (Appeals), Central Excise, Lucknow, vide impugned Orders-in-Appeal upheld all the Order-in-Original against which the appeals have been filed by the department and dismissed all the appeals filed by the department. 3. Being aggrieved by the impugned orders-in appeal, the applicant department has filed these revision applications under Section 35EE of the Central Excise Act, 1944 before Central Government on the following grounds,.- 3.1 It has been found that monthly d deposited by the party is on pro-rata basis by counting number of days vis-i-vis total pouch packing machines installed during the months. In view of provisions 3 of section 3A of central Excise Act, 1944 and Rule 8 of Pan Masala Packing Machines (Capacity determination and collection of duty) Rules 2008, the, option of payment of duty on pro-rata basis by the party suomoto is not available. Further, as per Pan Masala Packing Machines (Capacity determination and collection of duty) Rules 2008, the ,number of operating, packing machines for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le dealing with the above issue has erred in his findings while taking the plea that instruction dated 04.03.2011 by the Chief Commissioner, Central Excise, Lucknow Zone, in the form of letter C.No. V(30) CCO/LKO/Tech/26/2011 dated 04.03.2011 may be one of the factors which may be considered while deciding the instant case. However, this letter cannot override the Rules and Sections pertaining to the Issue. The Commissioner (Appeals) himself held in the concluding para of his Order-in-Appeal that "Section 3A of the Central Excise Act over-rides the provisions of Rule 8 of Pan Masala Packing Machines (Capacity determination and collection of duty) Rules 2008." Therefore, a letter dealing with some issue in a general form cannot be made precedence to decide a case where the case can be decided on merit only. 3.4 Further it cannot be accepted that since CEBC circular No. 528/69/2011-STO(TTU) was issued on 30.08.2011, therefore, the cases covering by this clarification prior to, 30.08.2011 are, not covered by the same since it cannot have retrospective effect. This finding is not correct as the law, i.e. Plastic Waste. (Management & Handling) Rules, 2011 dated 04.02.2011 were in exi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions on the subject matter. 4.4 The authority conducting the post audit of said rebate claims misconstrued the provisions of Notification No. 32/2008-CE(NT) dated 28.08.2008, by applying the terms and conditions stipulated under Notification No. 19/2004-CE(NT) dated 06.09.2004 relevant to the rebate of duty paid on excisable goods exported and sort in terms of the said Notification No. 19/2004-CE(NT) dated 06.09.2004 only. It has been totally ignored the terms and conditions stipulated at Sl. No. (ix) of the Notification No. 32/2008-CE(NT), dated 28.08.2008, under which the respondents had exported the said gutkha and which condition very clearly states that "the procedure as laid down in Notification No. 19/2004-CE(NT) dated 06.09.2004 shall be followed mutatis mutandis". It nowhere borrows the terms & conditions contained in para 2 of the said Notification as conditions & limitations are specified at Sl. No. (i) to (x). 4.5 Proviso to Rule 6(3) of the Pan Masala Packing Machines (Capacity determination and collection of duty) Rules 2008, states that incase a new manufacturer commences production of notified gods, his annual capacity of production shall be calculated on the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the department is repeatedly using the restrictions carved out in condition (g) of Rule 18 read with the Notification ibid, it is a trite that the words "prohibited under any law for the time being in force"", the whole term has been elaborately dealt correctly in the order of Commissioner (Appeals) and moreover as per the settled position of law and in light of the submissions made in the above paras, export of pan masala/gutkha in plastic sachets was not carved out as prohibited goods. Moreover as already inculated above, the clause 'mutadis mutandis', the said grounds of appeal has no legal sanction & the whole grounds for Revision Application filed by the department is without application of mind & using a rhetoric language. 4.9 In the case of M/s Suksha International Vs. UOI, 1989 (39) ELT 503(SC), the Hon'ble Supreme Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what the policy gives with the other. In the Union of India Vs A.V. Narasimhalu, 1983 (13) ELT 1534(SC), the Apex Court also observed that the administrative authorities should instead of re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....viso to rule 6(3) of the said Pan Masala Packing Machines Rules, 2008. 9.1 Government first proceeds to examine relevant provisions of statutes:- Rule (8) of said Pan Masala Rules, 2008 reads as under:- "Rule 8.- Alteration in number of operating packing machines In case of addition or installation or removal or uninstallation of a packing machine in the factory during the month, the number of operating packing machine for the month shall be taken as the maximum number of packing machines installed on any day during the month. Provided that in case a manufacturer commences manufacturing of goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month: Provided further that in case of non-working of any installed packing machine during the month, for any reason what....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2011 in the case of other manufacturer exporter M/s Pan Parag India Ltd. Kanpur. 10.1. In the said letter, issue was clarified as under:- "I would like to make it clear that in the matter of export the goods which are Iikely to be consumed by subjects and citizens of other countries, the ban ordered by Hon'ble Supreme Court or, even by Ministry of Environment and Forests, vide its, standing order of 4^th February 2011 would not be applicable to cases and consignments for export. Even otherwise, there are instructions of the government, issued from time to time, that in matter of exports no unwarranted and unjustified restrictions should be imposed. Therefore, flow of consignments meant for exports should not be got interrupted. " It was clearly stated in the said letter that ban ordered by Hon'ble Supreme Court or even by Ministry of Environment & Forests vide standing, order dated 04.02.2011 would not be applicable to cases and consignments for export. In pursuance to said clarification, clearance of said goods was allowed for export by Central Excise authorities. The Customs authorities at the p....