TaxTMI 
TaxTMI 
2016 (4) TMI 192
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..../AS, dated 15-3-2012 5. 195/773-774/13 -DO- 90-91/2013(AHD-II)CE/AK/Comm(A)/AHD, dated 16-4-2013 29-34/DC/ Demand/AP/2012, dated 23-11-2012 & others 6. 195/884/13 -DO- 168/13(Ahd-II) CE/AK/ Commr(A)/AHD, dated 26-8-2013 10/JC/2013/VG, dated 27-2-2013 7. 195/234/13 M/s. Intas Pharma Ltd. v. CCE, Mumbai-I BR(333-364) M-I/12, dated 3-10-2012 K-II/663-R/2011 (MTC), dated 12-12-2011. 8. 195/217-221/13 Intas Pharma Ltd. v. CCE, RGD. US/846-850/ RGD/12, dated 27-11-2012 545/12-13/ DC(Rebate), dated 22-5-2012 & 324/11-12/DC (rebate), Raigad, dated 30-4-2012 9. 195/241/13 -DO- BC/432/RGD (R)/12-13, dated 29-11-2012 1363/12-13/DC(Rebate)/ Raigad dated 22-8-2012 10. 195/242/13 -DO- BC/430/RGD (R)/12-13, dated 29-11-2012 1232/12-13/DC (Rebate)/Raigad, dated 2-8-2012 11. 195/430-434/13 -DO- US/871-875/ RGD/12, dated 11-12-2012 323/12-13/DC (Rebate)/Raigad, dated 30-4-2012 & others 2. Brief facts of these cases in common are that the applicant, a manufacturer-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-C.E. (N.T.), dated 6-9-2004. The manufacturer had paid ....
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....said Tariff Notification, has been issued by the Central Government, under Section 5A(1) of the Central Excise Act and has been approved by the Indian Parliament. The applicants, now prefer to refer to Serial Entry No. 21 of the Table, to the Notification No. 2/2008-C.E., dated 1-3-2008, whereunder, the same Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, are assessable to the Cenvat, at the rate of 10% ad valorem and accordingly, the total duty rate on Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, works out to 10.30%, under the said Serial Entry No. 21 of the Table, to the Notification No. 2/2008-C.E., dated 1-3-2008. Notification No. 2/2008-C.E., dated 1-3-2008, has been issued by the same Central Government, under the provisions of Section 5A(1) of the Central Excise Act, with approval of the Indian Parliament. 4.2 In the premises, in respect of Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, the Indian Parliament has floated two different Notifications, namely, (1) Notification No. 4/2006-C.E., dated 1-3-2006, with Serial Entry No. 62-C, whereunder, Medicaments of Heading 3004 of the First Sch....
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....ce amount of Rebate by cheque with interest at appropriate rate, under Section 11B of the Central Excise Act, read with Section 11BB. 4.5 The applicant also stated that the respondent has also argued that from the Budget speech of the Finance Minister, as cited by him in his Order-in-Appeal, the purpose and object of keeping duty rate of pharmaceutical products at low rate of 4% is to keep the price of Pharmaceuticals as low as possible and therefore, it cannot be the intention of the Government to export goods at higher price it being the priority area. Government will always want to keep cost of exportable goods low and therefore, it does not fit in to the logic that it was ever intention of the Government to allow export of goods at the Central Excise duty rate of 10%, notwithstanding the rebate but this argument is unreasonable by paying Central Excise duty at the rate of 10.30% of export goods because the foreign buyer is not going to pay the said duty element and the same is returned back by the Central Government to the exporter, given rate at the rate of 4.12% instead of 10.30%, the cost of pharmaceutical products exported would be enhanced. So the arguments of the re....
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....06 as amended or in some cases at 0% in terms of Notification No. 21/2002-Cus., dated 1-3-2002 read with Notification No. 4/2006-C.E., dated 1-3-2006. 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 payable @ 0%/4%/5% and rebate has been allowed to that extent only. In some cases the remaining duty paid was allowed to be re-credited in Cenvat account. The Commissioner (Appeals) upheld the impugned Orders-in-Original. Now, the applicants have filed these revision applications against the impugned Orders-in-Appeal on the grounds stated above. 8. The applicants have contended that both the said notifications have approval of Parliament and therefore, they are at liberty to avail any notification whichever they find beneficial to them. Therefore, they have claimed to be eligible for rebate of duty paid on export goods @ 10% in terms of Notification No. 2/2008-C.E., dated 1-3-2008 as amended. 8.1 It is observed that Central Government issued Notification No. 2/2008-C.E., dated 1-3-2008 which had an effect of reduction in general rate of Central Excise duty on various products fr....
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....uction has been made, the details of which are indicated in the subsequent paragraphs. These changes have been carried out by notification. The other ad valorem 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 (except 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 is now 8%. However, certain specified items such as life saving drugs continue to be fully exempt. Excise duty has been fully exempted on Anti-AIDS drug ATAZANAVIR, and bulk drugs for its manufacture." The Joint Secretary (TRU) C.B.E. & C. has hereinabove made it amply clear that reduction in General Tariff Rate has been carried out by notification and therefor....
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....n 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 consumption such as pressure cookers, cheaper electric bulbs, low priced footwear, water filers/purifiers, CFL, etc. : power driven pumps for handling water and paraxylene." Further, the Hon'ble Finance Minister in his speech while presenting the Union Budget for 2010-11 in the Parliament stated that : "PART - B INDIRECT TAXES 142. Unlike the time I presented the last Budget, symptoms of economic recovery are more widespread and clear-cut now. The three fiscal stimulus packages that the Government intro....
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....ue will have to be examined in the light of these instructions. As explained 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%, 8% to 4% and finally to 5% by different amending notifications. As such it is not correct to say that it is a case of applicability of two notifications only and that the assessee is at liberty to choose any one notification which is beneficial to him. In this case, Notification No. 2/2008-C.E. as amended provided for General Tariff rate of duty and Notification No. 4/2006-C.E. as amended provided for effective rate of duty and they have to be strictly construed as such. Therefore, they have to be read together as stipulated in para 4.1 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual. In fact, this confusion has arisen since in this case the General Tariff rate was reduced through notification when special economic stimulus package was announced in 2008 by G....
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....e 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. 8.7 Applicants have 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 : i. CCE, Baroda v. Indian Petro Chemicals - 1997 (92) E.L.T. 13 (S.C.) ii. HCL Ltd. v. CC, New Delhi - 2001 (130) E.L.T. 405 (S.C.) iii. M/s. Arvind Ltd. v. UOI - 2014 (300) E.L.T. 481 (Guj.). 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. Hon'ble Supreme Court has categorically held that in such a situation assessee has option to choose any one notification. Apex Court has not stated that assessee can avail both the notifications simultaneously. Whereas in the instant case applic....
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.... and a close 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, it needs to be reiterated that each one of the above citation has different set of facts, pertaining to manufacturing of goods of different sub-headings, following different notifications, choosing different beneficial schemes and changing thereof in between a given financial year, thereby leading to different question of law. 8.10 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. 8.10.1 Hon'ble Supreme Court has held in the case of CCE v. Parle Exports - 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 notific....
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....t payable - Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate." Therefore, the lower authorities have rightly allowed the re-credit of the excess paid amount of duty in then Cenvat credit account. 11. Government also notes that in some cases the original authority either denied rebate where excise duty payable was NIL in terms of Notification No. 4/2006, dated 1-3-2006 read with Notification No. 21/2002-Cus., dated 1-3-2002 or confirmed recovery of rebate erroneously sanctioned on the ground that duty was not payable by the applicant. As held in above paras, the rebate is admissible only to the extent of 0%/4%/5% as the case may be. 11.1 Further, notwithstanding the above Government observes that when the goods are absolutely exempted from payment of duty, the assesse cannot pay duty as per Section 5A(1A) proviso wherein it has been provided "that where an exemption under sub-section (1) in respect of any excisable goods from the whole of duty of excise levia....