TaxTMI 
TaxTMI 
2013 (12) TMI 1582
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....vat credit account against their clearance for export. The applicant had claimed rebate in respect of the duty paid on export clearances. The adjudicating authority had sanctioned cash rebate @ 4% or @ 5% adv. + cess on the FOB value and remaining amount was sanctioned by way of credit in their Cenvat account under Rule 18 of the Central Excise Rules, 2002 read with Section 11B of the Central Excise Act, 1944. 3. Being aggrieved by the said orders-in-original, applicant filed appeals before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned orders-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 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 4/2006-C.E., dated 1-3-2006, with Sl. Entry No. 62-C, whereunder, Medicaments of Heading 3004 of the First Schedule to the said Tariff Act, are chargeable to total Central Excise Duty of 4.12% ad valorem and (2) Notification 2/2008-C.E., dated 1-3-....
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.... the decision of the Hon'ble CESTA Tribunal in the case, titled as HYVA (India) Pvt. Ltd. v. CCE, Belapur - 2010 TIOL-1410-CESTAT-MUM. 4.7 Case laws relied upon by the applicants are as follows : • Mangalam Alloys Ltd. v. CCE, Ahmedabad - 2010 (255) E.L.T. 124 (Tri.-Ahmd.) • CCE, Baroda v. India Petro Chemicals Corporation Ltd. - 1997 (92) E.L.T. 13 (S.C.) • HCL Ltd. v. CCE, New Delhi - 2001 (130) E.L.T. 405 (S.C.) • Share Medical Care v. UOI - 2007 (209) E.L.T. 321 (S.C.) • CCE, Bangalore v. Maini Precision Products Pvt. Ltd. - 2010-TIOL-1663 (Tri.-Bang.) = 2010 (252) E.L.T. 409 (Tribunal) • HYVA (India) Pvt. Ltd. v. CCE Belapur - 2010-TIOL-1410-CESTAT-Mum. 5. Personal hearing was scheduled in this case on 28-11-2013 & 16-12-2013. Nobody attended the hearings. The applicants vide letter dated 10-12-2013 has requested to waive the personal hearing and decide the case as per submissions made by them in revision applications. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. Government observe....
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....ill, 2008 introduced in Lok Sabha on 29-2-2008. In Paras 1, 2 & 3, he informed as under :- "1. Central 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 out. 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 unde....
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....e 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 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 24h 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 it....
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....ise 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 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. These C.B.E. & C. Instructions clearly stipulate that applicable effective rate of duty will be as per the exemption notification. The said instruction is issued specifically with respect to sanctioning of 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 ....
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.... 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 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 abovesaid C.B.E. & C. Instructions in this case. 8.6 Applicant has 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 CCE, Baroda v. India Petro Chemicals and HCL Ltd. v. CC, New Delhi, Hon'ble Supreme Court has held that when two notifications co-exist....
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....tion have different background of factual merits pertaining to manufacturers manufacturing goods of different sub-headings following different set of notifications, choosing different beneficial schemes and changing thereof in between a given financial year thereby leading to arise of different question of law. 8.7 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. 8.7.1 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 notification is, as if it were contained in the Act itself. Apex Court has clearly observed that any exemption notification specifying effective rate has to be complied with. In this regard, Hon'ble CESTAT, Ahmedabad Bench in its judgment in the case of Mahindra Chemicals v. CCE, Ahmedabad - 2007 (208) E.L.T. 505 (Tri. -....
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.....E. (prescribing full exemption) are independent notifications and there is no restriction on availing both simultaneously. However, the manufacturer should maintain separate books of account for goods availing Notification No. 29/2004-C.E. and for goods availing Notification No. 30/2004-C.E." In this case, both the notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing Cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX, dated 26-11-2010 is not applicable as in the instant case there is no applicability of provis....