TaxTMI 
TaxTMI 
2015 (1) TMI 805
X X X X Extracts X X X X
X X X X Extracts X X X X
....do- Mumbai-I 4. 195/201/13 BC/362/RGD(R)/12-13 dt. 30.10.12. Meditab Specialities P. Ltd. Raigad 5 195/205/13 BR/383 to 389)MI/2012 dt. 9.11.12 Okasa Pvt. Ltd. Mumbai-I 6. 195/206/13 -do- -do- -do- 7. 195/383/13 BC/414/RGD(R)/12-13 dt 27.11.12 Cipla Ltd. Raigad 8 195/387/13 BC/421/RGD(R)/12-13 dt 27.11.12 Uni world Pharma P. Ltd. -do- 9 195/388/13 BC/422/RGD(R)/12-13 dt 27.11.12 -do- -do- 10 195/389/13 BC/423/RGD(R)/12-13dt 27.11.12 -do- -do- 11 195/391/13 BC/425/RGD(R)/12-13 dt 29.11.12 -do- -do- 12 195/460/13 BR(1 to 4)MI/2013 dt. 19.12.12 Uni World Pharma P. Ltd. -do- 13 195/461/13 BR(10 to 24)MI/2013 dt. 1.2.13 Okasa Pharma P. Ltd. -do- 14 195/462/13 BR(10 to 24)MI/2013 dt. 1.2. 13 Uni World Pharma P. Ltd. -do- 15 195/463/13 BR(10 to 24)MI/2013dt. 1.2.13 Cipla Ltd. -do- 16 195/487/13 BC/525/MUM- lit)/12- 13 dt. 23.1.13 Cipla Ltd. Mum-III 17 195/488/13 BC/526/MUM-III(R)/12-13 dt. 23.1.13 -do- -do- 18 195/489/13 US/912/RGD/12 dt. 18.12.12 Meditab Sp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on, even if the exemption so chosen is generic and not specific. 4.3 The tariff has not been amended by any Act of Parliament. When two Notifications - which are not mutually exclusive co-exist in the books of law, the assessee has option to choose any one of them. (i) In other words, when both the Notifications co-exist simultaneously and do not mutually exclude the other, they had option to choose between the aforesaid notifications. When pluralities of exemption are available, the assessee has the option to choose any of the exemptions, even if the exemption so chosen is generic and not specific. The above legal proposition is well settled by the Supreme Court in HCL Ltd. vs. Collector of Customs, New Delhi 2001 (130) ELT 405 (SC), wherein it was held that -"The question in these appeals is covered in favour of the applicant by the order of this Court in Collector of Central Excise, Baroda V Indian Petro Chemicals [1997 (92) EL T 13]. Where there are two exemption notifications that cover the goods in question, the assessee is entitled to the benefit of that exemption notification which gives him greater re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ade there under which has the effect of requiring the assessee to mandatorily avail the exemption Notification No. 4/2006-CE dated 1.03.06 (Sr. No. 62C) only. 4.5 They are entitled to entire refund of duty paid on goods exported. (i) The Rule 18 of the Central Excise Rules, 2002, which grants rebate of the excise duty paid on goods exported , reads as under: "Rule 18 where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." (ii) The conditions and procedures to claim rebate are prescribed under Notification No. 19/2004-CE(NT) dated 6.09.04 and the essential condition prescribed under the said Notification is that the goods shall be exported after payment of duty. The fact that the goods which have been exported and have suffered excise duty is also not....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 8. The applicants have contended that both the said notifications has approval of Parliament and therefore they are at liberty to avail any notification whichever they find beneficial to them. Therefore they have claimed themselves to be eligible to rebate of duty paid on export goods @10% in terms of Notification No. 2/08-CE dated 1.03.08 as amended. 8.1 It is observed that Central Government issued Notification No. 2/08-CE dated 1.03.08 which has an effect of reduction in general rate of Central Excise Duty on ,various products from 16% to LL 14%. Thereafter, this notification was amended by Notification No. 58/08-CE dated 7.12.08 reducing the said general rate from 14% to 10%. Vide Notification No. 4/09-CE dated 242.09 said Notification 2/08-CE was further amended to reduce the general rate of duty from 10% to 8%. Finally the Notification No. 2/08-CE was amended by Notification No. 6/10-CE dated 27.02.10 to enhance the said general rate of duty from 8% to 10%. Pharmaceutical drugs and medicines falling under Chapter 30 of First Schedule to Central Excise Tariff Act, 1985 covered under serial entry No. 21 of table to Notification No. 2/08-CE dated 1.03.08 as amended, attr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Pharmaceuticals 3.1 Excise duty on drugs and pharmaceuticals falling under Heading Nos 3001, 3003 (export 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 items such as life saving 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 to assessee may be extended. In the instant case, the applicant has availed both the rates of duty, which is not allowed in TRU letter. Here basically the issue involved is whether rebates of duty paid at tariff rate or effective rate is to be allowed and not exactly regarding applicability of two notifications for payment of duty. 8.3 It is felt that it is nece....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ard on 7th of December, 2008 and by another 2 percentage points in the mean Cenvat rate on the 24th February, 2009. 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 presen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... may be less than, equal to or more than the FOB value indicated by the exporter on the Shipping Bill. The plain reading of said para, reveals that the export goods shall be assessed to duty in the same manner as the good cleared for home consumption are assessed. Further the classification and rate of duty should be as stated in schedule of Central Excise Tariff Act, 1985 read with any exemption notification and /or Central Excise Rules, 2002. The CBEC instructions clearly stipulate that applicable effective 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 appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have to comply with the same. Hon'ble Supreme Court has held in the case Paper Products Ltd. vs. CCE 1999 (112) ELT 765 (SC) that circulars issued by CBEC are binding on departmental authorities; they cannot take a contrary stand and department cannot repudiate a circular issued by Board on the basis that it was inconsistent with the statutory provision. Hon'ble Apex Court has further held that department's actions have to be consistent with the circulars, consistency and discipline are of far greater 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 hel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and changing thereof in between a given financial year thereby leading to arise of different question of law. 8.8. Government further notes that following case laws lend support to the view that rebate is to be allowed of the duty paid on exported goods, at effective rate prescribed in the notification and the excess paid amount as duty from the cenvat credit is-to be refunded in the cenvat credit account. 8.8.1 Hon'ble Supreme Court has held in the case of CCE vs. Parle Exports 1988 (38) ELT 741 (SC) that when a notification is issued in accordance with power conferred by statute, it has statutory force and validity and 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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and Textiles Articles. Regarding issue No. 1, CBEC clarified in Circular No. 795/28/2004-CX dated 28.07.04 as under: "Issue No. 1: Can a manufacture of Textiles or Textiles articles avail full exemption under No. 30/04-CE dated 9.07.04 as well as clear similar or dissimilar goods on payment of duty under Notification No. 29/04-CE dated 9.07.04 simultaneously? Clarification: Notification No. 9/04-CE (prescribing optional duty at the rates of 4% for pure cotton goods and 8% for other goods) and Notification No. 30/04-CE(prescribing full exemption) are independent notifications and there is no restriction on availing both simultaneously. However, the manufacturer should maintain separate books of account for goods availing Notification No. 29/04-CE and for goods availing Notification No. 30/04-CE In this case, both the Notifications prescribed effective rates of duty. Notification No. 30/04-CE prescribed ni....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; The said provisions of this notification clearly stipulate that after examining the rebate claim, the rebate sanctioning authority will sanction the claim in whole or part as the case may be depending -on facts of the case. Government notes that said notification Issued under Rule 18 of Central Excise Rules, 2002, prescribes the conditions, limitations and procedure to be following for claiming as well as sanctioning rebate claims of duty paid on exported goods. The satisfaction of rebate sanctioning authority requires that rebate claim as per the relevant statutory provisions is in order. He does not have the mandate to sanction claim of obviously excess paid duty and then initiate proceeding for recovery of the erroneously paid rebate claim. Therefore, the circular of 2000 as relied upon cannot supersede the provisions of Notification No. 19/04-CE(NT). Applicants have relied upon this authority's GOI Order No. 208/10-CX dated 3.02.10 in the case of Auro Spinning Mills 2012 (276) ELT 134 (GOI) during hearing of case held on 9.08.12. Government notes that in the cited case, there were two exemption notifications which were availed simultaneously ....