TaxTMI 
TaxTMI 
2016 (4) TMI 192
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....243/13 -DO- 255/12(AHD-II) CE/Ak/COMMR (A)/AHD, dated 22-10-2012 32-37/ ADC/Demand/ 2012/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 ....
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.... said Tariff Act, are assessable under MRP Based Valuation, under Section 4A of the Central Excise Act, at the total Central Excise Duty rate of 4.12% (5.15% as amended), the 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 fl....
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....Authority, granting rebate under Rule 18 of the Central Excise Rules, 2002, by way of Cenvat credit, is bad in law and requested to direct the Original Authority to refund the balance 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 b....
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.... Notification No. 2/2008-C.E., dated 1-3-2008 as amended. Similarly, the manufacturers had cleared said goods for home consumption on payment effective rate of duty @ 4% up to 28-2-2011 and @ 5% w.e.f. 1-3-2011 under Notification No. 4/2006-C.E., dated 1-3-2006 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 ....
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....tral 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 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 lif....
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.... 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 mass consumption such as pressure cookers, cheaper electric bulbs, low priced footwear, water filers/purifiers, CFL, etc. : power driven pu....
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....r 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. The C.B.E. & C. instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification while sanctioning 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 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 ra....
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....to comply with the same. Hon'ble Supreme Court has held in the case of 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. 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....
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.... Court in paras 10 & 11 of the judgment in case of Escorts Ltd. v. CCE, Delhi-II - 2004 (173) E.L.T. 113 (S.C.) observed that 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. 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 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 r....
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....ich is required to be returned to the applicants, has already been allowed by the original/appellate authority. Hon'ble High Court of Punjab & Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P & H) has also decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not 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 sanctione....