TaxTMI 
TaxTMI 
2015 (3) TMI 780
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....MUM-III/12- 13 dt. 6.12.12 -do- 17-24 195/472-479/13 M/s Cipla Ltd., Mumbai BC/559-566/MUM-III/12-13 dt. 30.1.13 -do- 25-28 198/23-26/13 CCE Mumbai-III BC/559-562/MUM-III/12-13 dt. 30.1.13 -do- 29 198/55/13 -do- BC/563/MUM-III/12-13 dt. 30.1.13 -do- 30-32 198/27-29/13 -do- BC/564-566/MUM-III/12-13 dt. 30.1.13 -do- 33-35 195/480-482/13 M/s Cipla Ltd., Mumbai BC/547-549/MUM-III(R)/12-13 dt. 28.1.13 -do- 36-38 198/19-21/13 CCE Mumbai-III BC/547-549/MUM-III(R)/12-13 dt. 28.1.13 -do- 39 195/486/13 M/s Cipla Ltd., Mumbai BC/554/MUM-III(R)/12-13 dt. 29.1.13 -do- 40 198/22/13 CCE Mumbai - III -do- -do 41 195/644/13 M/s Cipla Ltd., Mumbai BC/658//M-III(R)/12-13 dated 25.3.13 -do- 42 198/57/13 CCE Mumbai-III -do- -do- 43-50 195/645-652/13 M/s Cipla Ltd., Mumbai BC/659-666//M 111/12-13 dated 25.3.13 -do- 51-58 198/58-65/13 CCE Mumbai-III BC/659-666//M 111/12-13 dated 25.3.13 -do- 59-62 198/44-47/13 -do- BC/505 to 508/M-Il1/12-13 dated 17.01.13 -do- 63-66 195/464-467/13 M/s Cipla Ltd., Mumb....
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....tween 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 relief, regardless of the fact that that notification is general in its terms and the other notifications is more specific to the goods. " (ii) They also further referred and relied on following decision of Supreme Court, High Court and CESTAT for this proposition - (a) 1997 (92) ELT 13 (SC) - CCE vs. Indian Petro Chemicals, (b) 1991 (53) ELT 347(T) - Indian Oil Corporation Ltd. vs. CCE (c) 1990 (47) ELT 7 (T) - Coromandal Print....
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....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 in dispute. (iii) The CESTAT in the case of Gayatri Laboratories vs. CCE 2006 (194) ELT 73 (T) held that rebate claim to the extent of duty paid is available and that the rebate claim cannot be restricted on ground that less duty should have been paid in terms of Notification. 4.1.6 Rebate sanctioning authority cannot question the assessment. It is well settled that rebate, sanctioning authority cannot question the assessment of export consignment. As to-how much duty ought to be paid is beyond the jurisdiction and realm of a rebate sanctioning authority. Hence, the im....
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....l are supplied by us to the supporting manufacturer. 4.3.2 Also, these supporting manufacturers is availing CENVAT Credit on raw and packing material received and consumed in. manufacturing of_finished goods on our account. Also, they are paying the central excise duty on our behalf on finished goods from our CENVAT account. Therefore, we are only paying the job work charges to them. Hence, there is no question of passing the duty incidence by supporting manufacturer to us as the burden of duty has itself been born by us. We are submitting herewith some copies of Job work bill and declaration obtained from our supporting manufacturer. 4.3.3 Where we have dispatched goods for export from our own manufacturing unit we are having status of 'manufacturing exporter', and in such cases there is no question of passing the duty incident as duty is paid by us only. Also, the applicant in his application has not considered this fact where we have status of manufacturer exporter. The said matter is already been decided by your office vide order No. 1318-1329/2013-CX dated 15.10.2013. Vide said order your office has held that "The amount of duty paid in excess of duty....
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....hant exporter filed rebate claims of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 read with Notification 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 01.03.2008 as amended. Similarly the manufacturers had cleared said goods for home consumption on payment effective rate of duty @ 4% upto 28.02.11 and @ 5% w.e.f. 01.03.11 under Notification No. 4/2006-CE dated 01.03.2006 as amended. 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%/5% 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%/5%. In appeal Commissioner (Appeals), modified the impugned Orders-in-Original and allowed the recredit in cenvat credit account of the amount rejected as rebate. Now, both M/s Cipla Ltd. as well as department have filed revision applications against the same Orders-in-Appeal on the grounds stated above. 8. M/s Cipla Ltd. had has contended that both the said notificatio....
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....h Finance Bill, 2008 introduced in Lok Sabha on 29.02.08. In para 1, 2 & 3, he informed as under :- "1. Central Excise 2. General Cenvat Rate: (Notification No. 2/2008-CE) 2 .1 The general rate of excise duty (CENVA T) 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 volorem rates of 24%, 12% and 8% have bee 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 (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 i....
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....ter in his speech while presenting the Union Budget for 2009-10 in the Parliament stated that "PART B PROPOSALS TAX 116. Hon'ble Members are aware that the Government announced a series of fiscal stimulus packages, one of the key elements of which was the sharp reduction in the ad valorem rates of Central Excise Duty for non-petroleum products by 4 percentage points across the board 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 ....
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.... case may be, of the Central Excise Act, 1944. It is clarified that this value 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. These CBEC Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. The said instruction is issued specifically with respect to sanctioning of rebate claim of duty paid on exported goods and therefore the whole issue will have to be examined in the light of these 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 f....
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.... opted for one notification for all clearance even if it is considered as case of applicability of two notifications. 8.6 Government notes that departmental authorities are bound by CBEC Circulars / Instructions and they 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 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 M/s Cipla Ltd. has relied upon number of case 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 vs.....
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...........". Therefore, there cannot be any strict statutory relied upon citation which can be taken as guiding precedents because each one of above citation have different background of factual merits pertaining to manufacturers manufacturing goods of different sub-headings following different set of Notifications, choosing different beneficial schemes 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 thi....
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....M/s Cipla Ltd. have relied upon .CBEC Circular No. 795/28/2004-CX dated 28.07.04 and 937/27/2010-CX dated 26.11.10 in support of their claim that they can avail both the notifications. In this regard, Government observes that subsequent to Budget, 2004 number of changes were made in the excise duty structure on Textiles 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. 29/04-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. 30104-CE" In this case, both the Notificatio....
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....t 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). 8.11 Government notes that said issued is already decided vide Government of India Revision Order No. 1318 - 1329/13-CX dated 15.10.2013 in the case of M/s Cipla Ltd., the same applicant party In the said order, it was held that rebate claim was admissible to the extent of duty payable at effective rate of duty @ 4% or 5% as the case may be and not of duty paid at the tariff rate of ....