TaxTMI 
TaxTMI 
2015 (3) TMI 822
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....ma Ltd. IND-CE/000/APP/246- 260/11 dated 22-6-2011 ------do------ 3. 195/268-275/11-RA M/s. Osmed Formulation Pvt. Ltd. IND-26-33 Appeal/Indore/11 dated 21-1-2011. Ms. Harsimran Kaur, Advocate attended the hearing on 10-10-2012. She reiterated grounds of revision application. 4. 195/1083-1084/11-RA M/s. Osmed Formulation Pvt. Ltd. IND-CE/000/ APP/320 & 321/11 dated 29-7-2011 ------do------ 5. 195/1103/11-RA M/s. Osmed Formulation Pvt. Ltd IND-34- Appeal/Indore/11 dated 27-1-2011 ------do------ 6. 195/452-456/11-RA M/s. Zest Pharma IND-85- 89/Appeal/Indore/11 dated 23-2-2011 Shri Ramesh Nair, Advocate attended the hearing on 11-10-2012. He re-iterated grounds of revision applications. 7. 195/649-653/11-RA M/s. Zest Pharma IND-CE/000/ APP/228-232/11 dated 14-6-2011 ------do------ 8. 195/03-07/11-RA M/s. Zest Pharma IND/CE/000/ APP/382-386/11 dated 28-9-2011 ------do------ 9. 195/442-446/12-RA M/s. Zest Pharma IND/CE/000/ APP/07-11/12 dated 13-7-2011 ------do------ 10. 195/1079/12-RA M/s. Zest Pharma IND/CE/000/ APP/290/11 dated 13-7-2011 ------do------ 2. Brief....
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....First Schedule to the said Tariff Act, are chargeable to total Central Excise duty of 4.12% ad valorem and (2) Notification 2/2008-C.E., dated 1-3-2008, with Sl. Entry No. 21, whereunder, same Medicaments of the same Heading 3004 of the First Schedule to the said Tariff Act, are chargeable to total Central Excise duty, at the rate of 10.30 ad valorem. 4.2 This means that at the disposal of the rebate claim of the applicants, they have two different Tariff Notifications, both being approved by the Indian Parliament, for the same Medicaments of the Heading 3004, of the First Schedule to the said Tariff Act. 4.3 By now it is settled question of law that when the Legislature has enacted two different Tariff Notifications, in respect of same finished excisable goods, it is upto the Central Excise assessee, to choose one which is most beneficial to him, for a given consignment of the finished excisable goods. This being the position, as out of the two notifications namely, (1) Notification 4/2006-C.E., dated 1-3-2006 and (2) 2/2008-C.E., dated 1-3-2008, the applicants have selected Notification 2/2008-C.E., dated 1-3-2008 and paid Central Excise duty accordingly, on the e....
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....ough Cenvat credit account as per the clarification issued by the C.B.E. & C. under Circular No. 687/03/2003-LX, dated 3-1-2003. 4.9 Case laws relied upon by the applicants :- * Mangalam Alloys Ltd. v. CCE, Ahmedabad - 2010 (255) E.L.T. 124 (Tri.-Ahmd.) * CCE, Baroda v. Indian Petro Chemicals - 1997 (92) E.L.T. 13 (S.C.) * HCL Ltd. v. CCE, New Delhi - 2001 (130) E.L.T. 405 (S.C.) * Share Medical Care v. UOI - 2007 (209) E.L.T. 321 (S.C.) * CCE, Bangalore v. Maini Precision Products Pvt. Ltd. - 2010-TIOL-1663-Tri. (Bang) = 2010 (252) E.L.T. 409 (Tri.-Bang.) * HYVA (India) Pvt. Ltd. v. CCE, Belapur - 2010-TIOL-1410-CESTAT, Mum. * 1997 (94) E.L.T. 139 (Tribunal) - Modi Xerox Ltd. v. Collector of Central Excise, Meerut. * 2007 (218) E.L.T. 547 (Tri.-Chennai) - Cipla Ltd. v. Commissioner of Central Excise, Chennai. * 2009 (235) E.L.T.....
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.... read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The original authority sanctioned the rebate claims to the extent of duty paid @ 4% and allowed recredit of balance amount in their Cenvat credit account. In appeal, Commissioner (Appeals), upheld all the orders-in-original passed by original authority and rejected the appeals of the applicants. Now the applicants has filed these revision applications on the grounds stated in para 4 above. 8. Applicant has mainly contended that there are two notifications prescribing different rates of duty on their product pharmaceutical drugs and medicine, as per Notification No. 2/2008-C.E., dated 1-3-2008 as amended, duty rate (BED) (against Sr. Entry No. 21 of the table) is 10% and at the same duty rate (BED) of same goods as per Serial Entry No. 62-C of the table to Notification No. 4/2006-C.E., dated 1-3-2006 as amended, is 4%, that they are at liberty to avail any notification whichever is beneficial to them, that they are eligible to rebate of duty paid @ 10% on export goods. 9. Government notes that applicants were availing Notification No. 4/2006-C.E. as amended till Feb. 2010 in respect of all clearances ma....
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....ter DOFO No. 334/1/2008-TRU, dated 29-2-2008 explained the changes made in Excise and Customs duties through Finance Bill, 2008 introduced in Lok Sabha on 29-2-2008. In Paras 1, 2 and 3, he informed as under :- "1. Central Excise 2. General Cenvat Rate : (Notification No. 2/2008-C.E.) 2.1 The general rate of excise duty (CENVAT) 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 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 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,....
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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 ma....
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....eading of said para, reveals that the export goods shall be assessed to duty in the same manner as the goods 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 C.B.E. & C. 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 in para 9.1 above, Notification No. 2/2008-C.E., dated 1-3-2008 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. 4/2006-C.E., dated 1-3-2006 as amended prescribed effective rate of duty from initial rate of 0% to 8% and finally to 4% by different amending notifications. As such it is not correct to say that it is a case of applicability of two notifications only....
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....ulars/Instructions and they have to comply with the same. Hon'ble Supreme Court has held in the case Paper Products Ltd. v. CCE - 1999 (112) E.L.T. 765 (S.C.) that circulars issued by C.B.E. & C. 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 C.B.E. & C. Instructions in this case. 9.7 Applicant 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 v. India Petro Chemicals and HCL Ltd. v. CC, New Delhi, Hon'ble Supreme Court has held that when two notifications co-exist simultaneously, then assessee has the option to choose any one of the notifications beneficial to him.....
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.... 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. 9.8.1 Hon'ble Supreme Court has held in the case of CCE v. Parle Exports (P) Ltd. - 1988 (38) E.L.T. 741 (S.C.) 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 judgment in the case of Mahendra Chemicals v. CCE, Ahmedabad - 2007 (208) E.L.T. 505 (T.-Ahd.) while relying on above said Apex Court judgment 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. 9.8.2 Hon'ble Supreme Court has also held in the case of M/s. Belapur Sugar and A....
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....d nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX., dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944. 10. In view of position explained in foregoing paras, Government finds that there is no merit in the contentions of applicant 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%. Government is of the considered view that lower authorities are legally right in holding t....