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2015 (12) TMI 1266
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....ods or provides services to a unit out of India. It is the case of the petitioner that since Special Economic Zone Act, 2005 and the Special Economic Zone Rules, 2006 authorize the DTA unit to supply goods to SEZ unit/developer as export, the DTA unit also can get the same benefits, which are otherwise available under the Central Excise Act, 1944 and the Central Excise Rules, 2002. Under the provisions of rule 18 of the Central Excise Rules, 2002 it is specifically provided that 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. In the present case, the petitioner company has purchased the raw materials from various local dealers/traders who have either imported such raw materials from foreign countries or procured the same from local manufacturers. It is the case of the petitioner that since the goods are exported to the petitioner company by the DTA supplier, the petitioner is elig....
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....d that the goods on which rebate claims are filed are imported and not produced or manufactured or processed in India but sold directly by the registered importers without any manufacturing or processing being done on them in India is without appreciating the correct legal provisions and without considering the deeming fiction created by the statute. It was submitted that the dealers have imported the goods and paid all the duties including Countervailing Duty (CVD), which is equivalent to the central excise duty as if the goods are manufactured in India and the same have been supplied to the petitioner company, whereas, in some of the cases, the goods are supplied from the suppliers which are manufactured in India. It was pointed out that when the goods are imported into the territory of India, duties, namely, basic customs duty, CVD, education cess and higher secondary education cess have to be paid at the time of clearance of the goods. The CVD is basically an additional duty levied under section 3 of the Customs Tariff Act, 1975 which provides that any article which is imported into India shall, in addition, be liable to a duty equal to the excise duty for the time being levied....
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.... of the Customs Tariff Act and, therefore, if under the Cenvat Credit Rules, 2004 credit of the duties which are paid under section 3 of the Customs Tariff Act, 1975 is allowed, there is no reason why the petitioner cannot get the same benefit as rebate when the goods are admittedly supplied to an SEZ unit. Referring to the notification issued under rule 18 of the rules, it was pointed out that the same does not provide any condition to the effect that rebate has to be granted only if the input is processed or manufactured in India. It was urged that the goods purchased by the petitioner have suffered duty and that the petitioner is, therefore, entitled to claim rebate and is eligible to get rebate of the goods exported by it. 3. Opposing the petition, Mr. Y.N. Ravani, learned Senior Standing Counsel for the respondent invited the attention of the court to the reasons assigned by the Assistant Commissioner while returning the rebate claim applications filed by the petitioner, to submit that the additional duty equal to excise paid on the goods exported to the petitioner is levied only to offset the disadvantage to like Indian goods due to high excise duty on their inputs. It is ....
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....011: "Please refer to your letter dated 14/03/2011 received by this office on 21/04/2011 on the above subject. It is apparent that you have filed a application for rebate of duty on excisable goods under Form-C. Subsection 2(xvi) of Section 37 of the Central Excise Act, 1944, gives the power to the Central Government to make rules to provide for the grant of rebate of duty paid on goods which are exported out of India. Rebate of duty on excisable goods is provided under Rule 18 of the Central Excise Rules, 2002. The said Rule 18 of the Central Excise Rules, 2002, states as follows- "Rebate of duty - 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". The said Rule 18 clearly indicates that where any goods are exported, the Central Government may grant rebate of duty on such excisable goods. Under Section 2(d) of the Central Excise Act, 1944, "excisable goods....
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....nder Section 136 of the Finance Act, 2001 (14 of 2001); (e) special excise duty collected under a Finance Act; (f) additional excise duty as levied under Section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under Section 91 read with Section 93 of the Finance Act, 2004; (h) the additional duty of excise levaiable under clause 85 of the Finance Bill, 2005; (i) Secondary and Higher Eduction Cess on excisable goods leviable under the Finance Act, 2007. It is evident from the said notification that the claim for rebate of duty on excisable goods is meant for manufacturers or processors. The said rebate claim facility has been initiated as an export incentive scheme for the benefit of goods manufactured and processed in India. The said facility is not meant for Registered dealers or importers under Central Excise, as they neither manufacture nor process the exported goods in India. As per Srl. No.(6) of the said Notification, the claim of rebate shall be lodged with the Dy./Assistant Commissioner of Central Excise having jurisdiction of the place approved for manufacture or processing of ....
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....r processed in India and attracting Central Excise duties. The rebate claims filed by your are not pertaining to goods on which duty of excise has been paid for manufacture or processing done in India. The goods indicated in your rebate claims appear to be goods imported by an importer, who has thereafter cleared the goods without any further manufacture or processing on the said goods, to your SEZ unit i.e. Intas Pharma Ltd., Pharmez, Vill. Matoda, Dist. Ahmedabad. This Commissionerate office is authorized to process only rebate claims for Central Excise duties paid on goods manufactured or processed in India. The duty paid by the registered importer being a customs duty, the refund of such duties should be claimed by the importer from the Customs Authorities at the port of import. Hence, your applications cannot be accepted by this office as rebate claim applications and therefore are returned herewith." 5. For the reasons that follow, this court is in complete agreement with the view adopted by the respondent authority in the impugned communication dated 18th May, 2011. 6. The Central Excise Act, 1944 is a law relating to central duties of excise on goods manufact....
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....ty' to mean the duties of excise collected under the enactments enumerated therein. For the purpose of availing of the benefit of the notification, the petitioner would, therefore, be required to satisfy the conditions and limitations provided therein. On a plain reading of the notification, it appears that the intention is to grant rebate in respect of the goods which are exported directly from the factory or a warehouse by a manufacturer or exporter registered under the Central Excise Rules and the merchant exporters who procure and export the goods directly from the factory or warehouse. Thus, the benefit of the notification is available in respect of the excisable goods which are exported as envisaged under section 2(d) of the Central Excise Act and such benefit is available to the manufacturers/exporters registered under the Central Excise Rules and the merchant exporters who procure and export the goods directly from the factory or warehouses. 7. In case of the petitioner, the goods in respect of which rebate is sought under the notification are raw materials which have been imported from foreign countries or procured locally from local manufacturer. The claim for reba....