TaxTMI 
TaxTMI 
2013 (11) TMI 1528
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....otification No. 4/2006-C.E., dated 1-3-2006, which prescribes effective rate of duty as 4% (in the case of P.P. Medicaments); whereas they were clearing the goods for export by paying higher rate of duty under Notification No. 2/2008-C.E., dated 1-3-2008, at rate of duty of 10% ad valorem only to avail higher amount of rebate. Accordingly, the adjudicating authority vide impugned order has sanctioned claim amounting to Rs. 1,28,932/- to the applicant in cash and balance amount of Rs. 1,93,398/- was allowed to be refunded by way of re-credit in their Cenvat credit Account. 3. Being aggrieved by the orders-in-original applicant filed appeal before Commissioner (Appeals) who rejected the appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 It was argued before the Commissioner (Appeals) that the Assistant Commissioner has violated the principles of natural justice by not issuing the show cause notice. The primary purpose of the show cause notice in law is to put the aggrieved party on notice of facts....
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....ate on goods exported and not (a) 10% as prescribed vide Notification No. 2/2008-C.E., dated 1-3-2008 as amended. This contention of the Department is not correct as per law. This is because, exemption Notification No. 2/2008-C.E., dated 1-3-2008 as amended was issued under delegated legislation power and have full statutory force. This being so Excise department is stopped from contending that the applicant cannot pay duty @ 10% by using this Notification and pay less duty @ 4% as per Notification which is beneficial to them. Excise Department/Authorities have no jurisdiction to direct or force assessee to follow a particular Notification which is beneficial to revenue. The order itself is without jurisdiction as no such power has been conferred on the authorities to raise such issue at the level when rebate claim is filed under Rule 18 of Central Excise Rules. The entire claim of the rebate has to be paid in cash. 4.4 The applicant further argued before the Commissioner (Appeals) that the finding of the Assistant Commissioner that the applicant cannot avail the benefit of both the exempted notification simultaneously; is totally wrong. In support the Assistant Commissione....
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....seen that by Notification No. 6/2010-C.E., dated 27-2-2010, the rate of duty set forth in the First Schedule of Central Excise Tariff Act, 1985 was enhanced from 8% to 10% ad valorem. It simply means that the standard rates of excise duty of tariff rates are changed by the Central Govt. by issuing Notification under the powers of Section 5A(1) of the Central Excise Act, 1944. At the same time effective rates of duty on all excisable goods are also effected by the Central Govt. through the Notification which are also issued under the powers of Section 5A(1) of the Central Excise Act, 1944. In view of this there is a clear distinction between the Notifications which are issued to set forth the rate of duty in the First Schedule of Central Excise Tariff Act, 1985 and the notifications which are issued for prescribing effective rates of duty on excisable goods, even though these notifications are issued under the powers of Section 5A(1) of the Central Excise Act, 1944. 4.7 Hon'ble Supreme Court in their judgments dated 7-5-96 in C.A.No. 8762 of 1992 in case of CCE & Others v. Union of India (with Civil Appeals Mps/1965/86, 1966/86, 2328/86, 1059/81, 2393-2409/80, 1052/81, 285/8....
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....006 providing for effective Nil rate of duty was amended vide Notification No. 4/2008-C.E., dated 1-3-2008 by inserting Sr. No. 62A, 62B, 62C, 62D & 62E for (CETH) No. 3001, 3003, 3004, 3005 & 3006 (except 3006.60 & 3006.92) prescribing effective rate of duty @ 8%. The Joint Secretary (TRU) vide his DO Letter No. 334/1/2008-TRU, dated 29-2-2008 had stated that the excise duty on drugs and pharmaceutical products falling under Central Excise Tariff Headings (CETH) No. 3001, 3003, 3004, 3005 & 3006 (except 3006.60 and 3006.92) was reduced from 16% to 8% and thus general effective rate for all goods of Chapter 30 was now 8%. Thereafter, said Notification No. 4/2006-C.E. was amended vide Notification No. 58/2008-C.E., dated 7-12-2008 whereunder effective rate of duty was reduced to 4% which was prevalent during the period when said exports were made. 8.1 The Joint Secretary (TRU) CBEC in his DO Letter DOF 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 29-2-08. In Paras 1, 2 & 3, he informed as under :- "1. Central Excise 2. General Cenvat Rate : (Notification No. 2....
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....08. On the other hand, the tariff rate of duty for the Chapter Heading 3004 was 16% adv. However subsequently reduction in general tariff rate of duty was effected as under : The Hon'ble Finance Minister in his speech while presenting the Union Budget for 2008-09 in the Parliament stated that :- "PART-B VIII. PROPOSALS TAX "Para 144. The manufacturing sector is the backbone of any economy. It is consumption that drives production and it is production that drives investment. Having carefully studied current trends of production and consumption, I believe there is a need to give a stimulus to the manufacturing sector. Hence, I propose to reduce the general CENVAT rate on all goods from 16 per cent to 14 per cent." This proposed reduction in general tariff rate Cenvat duty was carried out vide Notification No. 2/2008-C.E., dated 1-3-2008. Further, the Hon'ble Finance Minister 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 va....
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....ecide the issue involved in these cases. The instructions contained in Para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual on Supplementary Instructions relating to rebate of duty paid on excisable goods exported may be perused which are 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 g....
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....ods for home consumption. So, applicant has to assess all goods whether cleared for export or home consumption in a same manner. He cannot assess export goods at higher rate of duty @ 10% and goods cleared for home consumption at lower rate of duty @ 4%. He has to choose any one notification and assess all clearance of goods in the same manner even if there are two effective rates of duty as per two notifications. In this case, the situation is different since Notification No. 2/2008-C.E. as amended prescribed duty at General Tariff rate of 10% whereas effective rate of duty is 4% vide Notification No. 4/2006-C.E. as amended. Even the Joint Secretary (TRU) C.B.E. & C. in his DO Letter dated 29-2-2008 clarified that rate of duty beneficial to assessee have to be extended. The said letter has not allowed payment of duty under both notifications. Assessee could have opted for one notification for all clearance even if it is considered as case of applicability of two notifications. 8.5 Government notes that departmental authorities are bound by C. B. E. & C. Circulars/Instructions and they have to comply with the same. Hon'ble Supreme Court has held in the case of Paper Product....
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....enefit in case of dispute of classification/eligibility of claimant. None of the said judgments are on the issue of sanctioning rebate of duty paid on exported goods. For applicability of the cited precedents "Government is of the opinion which is guided by the observations of Hon'ble Supreme Court in Para 10 of the judgment in case of Escorts Ltd. v. CCE, Delhi-II, 2004 (173) E.L.T. 113 (S.C.) observed, which inter alia stipulates precedent-circumstantial flexibility - One additional or different fact may make a world of difference between conclusion of two cases - Disposal of two cases by blindly placing reliance on a decision, not proper - In Para 11 of said judgment following observations are made :- "11. The following words of Lord Denning in the matter of applying precedents have become locus classicus :- " .... "Each case depends on its own facts and a dose similarity between one case and another is not enough because even a single significant detail may alter the entire aspect in deciding such cases. One should avoid temptation to decide cases by matching the colour of one case against the colour of another..........". Therefore, there cannot be any strict statutor....