TaxTMI 
TaxTMI 
2015 (1) TMI 720
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.... ARE-1, Date Date of Export Rebate claimed 1 37 07-06-2011 22-06-2011 450721 1802884 2 38 07-06-2011 22-06-2011 450721 3 39 07-06-2011 22-06-2011 450721 4 40 07-06-2011 22-06-2011 450721 9795669 5 57 19-06-2011 04-07-2011 450721 6 58 19-06-2011 03-07-2011 450721 7 59 21-06-2011 04-07-2011 450721 8 60 21-06-2011 04-07-2011 450721 9 62 21-06-2011 04-07-2011 210336 10 63 21-06-2011 04-07-2011 450721 11 64 21-06.2011 01-07-2011 450721 12 65 21-06-2011 04-07-2011 450721 13 66 26-06-2011 04-07-2011 450721 14 67 26-06-2011 04-07-2011 450721 15 68 26-06-2011 04=07-2011 450721 16 69 26-06-2011, 04-07-2011 450721 17 70 26-06-2011 04-07-2011 450721 18 71 26-06-2011 04-07-2011 450721 19 72 27-06-2011 04-07-2011 450721, 20 73 27-06-2011 04-07-2011 450721 21 74 27-06-2011 04-07-2011 450721 22 75 01-07-2011 12-07-2011 450721 23 76 01-07-2011....
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.... at the port of export on the ARE-1, the export took place after 02-07-2011. 4.2 There had been a condition with effect from 04-02-2011 that sachets using plastic material should not be used for storing packing or selling Gutkha, tobacco and Pan Masala under rule 5 (d) of plastic waste (Management and Handling) Rules, 2011 notified by the Government of India in the minister of Environment and Forests. Central Board of Excise and Customs (CBEC) too vide their letter F.No. 528/69/2011-STO (TU) dated 30-08-2011 reiterating the provisions of the above rules clarified that the export of Gutkha in plastic sachets/plastic material in any form would be in contravention of Plastic Waste (Management and Handling) Rules, 2011. 4.3 The Commissioner (Appeals) erred in holding that the said notification and circular cannot be made applicable with retrospective effect unless or otherwise specified therein. The clarification issued vide letter F.No. 528/69/2011-STO (TU) dated 30-08-2011 of the CBEC itself directed to finalize all the past cases in the light of the clarification and enjoined upon all the Chief Commissioner and Commissioners to issue suitable; standing orders/public notices in....
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....ejected by Assistant-Commissioner, Farukhabad Division vide his order no. 14/ACF/Rebate/2012 dated 25.06.2012. However, we filed an appeal against the aforesaid order of the adjudicating authority before Central Excise Commissioner (Appeals), Lucknow. The Commissioner (Appeals), relying on Government of India Order 1662-1714/12-CX dated 06.12.2012 allowed the appeal of the applicant which would have resulted in sanction of amount of Rs. 1,15,58,553/ However, adopting a deliberate, diversionary and delaying tactics, the Commissioner of Central Excise, Lucknow, who himself has accepted the GOI order mentioned above, had chosen to file a revision application against the impugned order of the Commissioner (Appeals), Lucknow. It is worth noticing that the GOI order was for the same product for export to Afghanistan and therein 53 rebate claims were allowed in our own case. The GOI order, when had already been accepted by the Commissioner of Central Excise, Lucknow, there was no point on the part of the same, Commissioner of Central Excise, Lucknow to challenge another order of the Commissioner (Appeals), Lucknow, when facts and circumstances of the case and all material things were one ....
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....rovisions of Plastic Waste (Management and Handling) Rules, 2011, made and issued by Ministry of Environment & Forest had no extra-territorial jurisdiction. Those rules could only be applied to manufacturers and consumers of plastic bags which are Indian citizens and body corporate duly registered in India. The rules framed by the MoE & F vide SO 249(E) dated 04.02.2011 clearly prescribes under Rule 2 that provisions of Rule 5 and 8 shall not apply to the manufacturers of carry bags exclusively for export purpose by export oriented manufacturing units against an order of export received by the owner or occupier of the concerned manufacturing unit. If the gutkha was contained in a plastic sachet and was being manufactured for export, had it contravened any provisions of the Environment (Protection) Act, 1986, (29 of 1986), read with provisions of SO issued on 04.02.2011 by the MoE&F, then it ought to have been seized and confiscated by the Central Excise Authorities of Farukhabad and Lucknow. But nothing of the sort was done on their part as they were fully aware that in our own case the Government had earlier already approved 53 rebate claims. The exporter in this case was P.R. Che....
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.... cannot be made applicable with retrospective effect. Now, the applicant department has filed this revision application on grounds mentioned in para (4). 9. Government notes that rule 2 of Plastic waste (Management an Handling) Rules, 2011 notified on 04-02-2011, stipulates that provisions of Rule 5 and 8 shall not apply to the manufacture of carry bags exclusively for export purposes by export oriented manufacturing units against an order for export received by the owner or occupier of the concerned manufacturing unit. Rule 3 (b) defines carry bag to mean all plastic bags used to carry commodities including self carry features". The said definition of carry bags in rule 3 (b) was amended on 02-07-2011 as "bags made from all plastic material -used for the purpose of carrying or dispersing commodities but do not include bags that constitute or form an integral part of packaging in which goods are sealed prior to use. As such the plastic sachets used for packaging Gutka by sealing were not covered in the definition of carry bags w.e.f. 02-07-2011 and said plastic sachets were not eligible for exemption under rule 2 after the amendment dated 02-07-2011 in Plastic Waste (Management ....
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....aid is available in r/o goods themselves or as the case may be the excisable materials used in the manufacture of such goods- (i) if the goods are exported by sea or air the date on which the ship or the air craft in which such goods are loaded leaves India. Or (ii)------ ---------------------------------------------------------------- 11.2 Further the word export in defined in section 2 (18) of Customs Act, 1962 as under:- " (18) 'export' with its grammatical variations and cognate expressions, means taking out of India to a place outside India;" 11.3 The harmonious reading of above said provisions reveal that export takes place when goods leave India to a place outside India. So the date of export in case of goods exported by sea will be date on which ship leaves India. The Commissioner (Appeals) has erred in considering the date of removal of goods from factory as date of export and granted rebate on wrong presumption. 11.5 Government notes that export takes place when the ship leaves or sailed out of India. In this case, out of 27 cases, in 23 cases g....