TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 907
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....e C.Ex Act, 1944 on the grounds that as per the Notification No. 4/2006-C.E., dated 1-3-2006 as amended by Notification 4/2008, dated 1-3-2008 and 58/2008-C.E., dated 7-12-2008, the effective rate of Central Excise Duty on the product falling under Chapter 30 have been reduced from 8% to 4% with effect from 7-12-2008. It has been observed that the claimant had cleared their goods for export vide export invoice No. 892, dated 7-12-2008 (ARE-1 No. 771/2008-09, dated 7-12-2008) on payment of Central Excise Duty @ 8.24% instead of @ 4.12% vide ARE-1 No. 771/2008-09, dated 7-12-2008. However, they were liable to pay Central Excise Duty @ 4.12% only. Assistant Commissioner (Rebate) has sanctioned the rebate of duty as claimed which is not proper. 3. The said order-in-original was reviewed by Commissioner of Central Excise, Raigad & department filed appeal before the Commissioner (Appeals), who after due consideration of facts, submissions and merits of the case rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant Commissioner has filed this revision application under Section 35EE of the Central Excise Act, 1944 before Central Government on the ....
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.... (58) E.L.T. 561 (S.C.) wherein it was held that self assessment of duty is only provisional assessment subject to the final approval by the proper officer. (ii) Karan Associates v. CC (Import) - 2009 (236) E.L.T. 23 (Bom.) wherein it was held that even non-speaking assessment order is appealable. (iii) Collector v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) wherein it was held that the every order passed by the Adjudicating Authority, which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently. (iv) Priya Blue Industries Ltd. v. CC (Prev.) - 2004 (172) E.L.T. 145 (S.C.) wherein it was held that the officer considering the refund can neither sit in appeal or the assessment order nor can he review the assessment order. As long as order of assessment stands, the duty will be payable as per that order of assessment. The appeal filed by the Revenue does not show that assessment of the duty on the export consignment was ever successfully challenged. As....
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.... applicable inasmuch as the goods are self assessed by the manufacturer and also the relevant provisions of the rebate notification specifically stipulates that the rebate sanctioning authority shall satisfy himself as to the correctness of the rebate claim and that the duty has been correctly paid. 4.8 The provisions of para 3(b) of the Notification No. 19/2004 (N.T.), dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002. Clearly spelled out that if the proper officer (i.e. AC/DC of Central Excise having jurisdiction over the factory or Maritime Commissioner is satisfied himself that the claim is in order then he shall sanction the rebate either in whole or part. This means that he is empowered to look into the correctness of the rebate claim. 4.9 From the above, it seems that the rebate sanctioning authority should examine and satisfy himself that the rebate claim is in order in all respect and if it is not in order, he can restrict the claim amount. 4.10 Further, paragraph 8.4 of Chapter 8 of C.B.E. & C. Central Excise Manual reads as followed - "8.4 - After satisfying himself that the goods cleared for export under the relevant ARE-1 applicat....
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....of duty rebate shall be granted of the amount of duty paid and not amount of duty payable. The noticees submit that whatever amount of duty is paid on clearance of the goods for export the said amount has to be sanctioned as rebate. In support, the noticees place reliance on Circular No. 510/06/2000-CX., dated 3-2-2000 issued by the C.B.E. & C. and case laws (i) & (ii) - (i) Gayatri Laboratories Pvt. Ltd. v. CCE - 2006 (194) E.L.T. 73 (T) (ii) Bharat Chemicals v. CCE - 2004 (170) E.L.T. 568 (T) 5.3 At this stage, the rebate sanctioning authority cannot examine the correctness of the assessment. This is beyond the scope of the rebate sanctioning authority. In support, the noticees rely upon the decision in the case of Priya Blue Industries Ltd. v. CC (Prev.) - 2004 (172) E.L.T. 145 (S.C.). Further relied upon cases are (i) CCE v. Standard Drum and Barrel Mfg. Co. - 2006 (199) E.L.T. 590 (Bom.). Department's reliance on the case of (i) Nagpur Transwell Power Pvt. Ltd. v. CCE - 2009 (243) E.L.T. 459 (T) (ii) M/s. Gimatex Industries Ltd. v. CCE - 2010 (261) E.L.T. 1026 (T). 5.4 The C.B.E. & C. Circular is binding on the auth....
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....ical cross-objection as detailed in para 5 above. 9. Government notes that applicant department has relied upon para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual on Supplementary Instructions which is extracted as under :- "4. Sealing of goods and examination at place of dispatch 4.1 The exporter is required to prepare five copies of application in the Form ARE-1, as per format specified in the Annexure-14 to Notification No. 19/2004-Central Excise (N.T.), dated 6-9-2004 (See Part 7). The goods shall be assessed to duty in the same manner as the goods for home consumption. The classification and rate of duty should be in terms of Central Excise Tariff Act, 1985 read with any exemption notification and/or Central Excise Rules, 2002. The value shall be the "transaction value" and should conform to Section 4 or section 4A, as the 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 goods cleared for home consumption a....
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....ter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part." 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. Any other plea of scope of limits of rebate sanctioning authority without review/challenge of such self-assessments it is emphasized that when cited case of M/s. Priya Blue Industries Limited [2004 (172) E.L.T. 145 (S.C.)] is read along with M/s. Jain Shudh Vanaspati Ltd. Case [1996 (86) E.L.T. 460 (S.C.)], in proper perspective then it transpired that when there are inbuilt provisions in separate self-sufficient rebate sanctioning provisions than the rebate sanctioning authority should neither wait nor depend upon any other action of review process by any jurisdictional authority. 12. Further, the 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 ....