TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 718
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.... was 4% vide Notification No. 4/2006-CE dated 01.03.2006 as amended. Hence the claimant was eligible for rebate of duty @ 4% adv. paid on export goods. However the rebate claim was rejected on the grounds that in ARE-I No. 04/10-11 dated 29.052010 the chapter heading mentioned on the Central Excise Invoice, ARE-I and shipping bill was different. 3. Being aggrieved by the said Order-in-Original applicant filed appeals before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 Both the Notifications under consideration do not have any provision excluding the other. 4.2 When both the notifications co-exist simultaneously and do not mutually exclude each other, an assessee has an option to choose whichever is beneficial. When pluralities of exemption are available, the assessee has the option to choose any of the exemption, even if the exemption so chosen is generic and not specific. 4.3 When two Notifications which are not mutually exclusive co-exist in the books of law, the assessee....
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....n assessee. Further, the legal position cannot be distinguished on the ground that Notification No. 2/2008 provides for general amendment to the rates in Tariff. Even if it is admitted for the sake of argument, still, this does not detract from the fact that it is still a Notification issued under Section 5A only. The respondent has conveniently ignored the fact that if the rates in the Central Excise Tariff Act, 1985, are to be amended, it has to be done legally by way of a suitable Act of Parliament. Admittedly, there has been no Act of Parliament seeking to amend the rates prescribed in the Tariff. (iii) The Department has not pointed any provision under the Central Excise Act or rules made there under which has the effect of requiring the assessee to mandatorily avail the exemption Notification No. 4/2006-CE dated 01.03.2006 (Sr. No. 62C) only. 4.6 They are entitled to entire refund of duty paid on goods exported. (i) The Rule 18 of the Central Excise Rules, 2002, which grants rebate of the excise duty paid on goods exported, reads as under: "Rule 18 where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods....
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.... under chapter 21069099 and assessed @ 10% at the time of removal from the factory. Also payment of excise duty and export of goods is not in dispute and same has not been denied by Assistant Commissioner. After noticing the discrepancy of tariff heading, we have applied for amendment through our custom house agent vide letter dated 02.12.2011. Further, the quantity, product name, gross weight, net weight, no. of shippers and batch no. mentioned on ARE-I is tallying with export invoice, packing list and bill of lading. All these documents are submitted with rebate sanctioning authority with rebate claim. Therefore, the doubt of same product has not been exported is baseless. 5. Personal hearing scheduled in this case on 24.06.2015 was attended by Shri Sudarshan Meena, Assistant Division, Wagle Division on behalf of the respondent who stated that Order-in-Appeal being legal and proper, may be upheld. The applicant vide their undated letter requested to decide the case on merits. 6. Government has carefully gone through the relevant case records available in case files, oral & written submissions and perused the impugned order-in-original and order-in-appeal. 7. On perusal of rec....
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....rate for all goods of Chapter 30 is now 8%. Thereafter, said Notification No. 4/06-CE was amended vide Notification No. 58/08-CE dated 7.12.08 where under effective rate of duty was reduced to 4%. The Notification No. 4/06-CE was further amended vide Notification No. 4/11-CE dated 01.03.2011 and effective rate of duty was enhanced to 5% which was prevalent during the period when said exports were made. 8.2 The Joint Secretary (TRU) CBEC in his D.O. Letter DOF No. 334/1/2008-TRU dated 29.02.08 explained the changes made in excise and customs duties through Finance Bill, 2008 introduced in Lok Sabha on 29.02.08. In para 1, 2 & 3, he informed as under: "1. Central Excise 2. General Cenvat Rate: Notification No. 2 2008-CE 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 advolorem rates of 24%, 12% and 8% have been retained. 2,2 Since the reduction in the general rate has been carried out b....
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....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 percent." This proposed reduction in general tariff rate cenvat duty was carried out vide notification no. 2/2008-CE dated 1.03.08. 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 7fl1 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 ....
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....985 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 44 as the case maybe, 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 good 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. The CBEC 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. 2/08-CE dated 1.03.08 as amended prescribed General Tariff rate of duty @10% which was in fact brought down from 16% to 14%....
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....ded. 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. 8.6 Government notes that departmental authorities are bound by CBEC Circulars / Instructions and they have to comply with the same. Hon'ble Supreme Court has held in the case Paper Products Ltd. vs, CCE 1999 (112) ELT 765 (SC) that circulars issued by CBEC 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 nas 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 CBEC Instructions in this case. 8.7 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 ....
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....chemes and changing thereof in between a given financial year thereby, leading to different question of law. 8.9 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. 8.9.1 Hon'ble Supreme Court has held in the case of CCE vs. Parle Exports 1988 (38) ELT 741 (SC) 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 judgement in the case of Mahindra Chemicals vs. CCE Ahmedabad 2007 (208) ELT 505 (T-Ahd.) while relying on above said Apex Court judgement has held that exemption notification has to be construed as if this rate was prescribed by statute and when the legislature has decided to exempt certain goods by notific....