TaxTMI 
TaxTMI 
2015 (12) TMI 1644
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....while Central Excise Rules, 1944 under which the Central Government has allowed rebate of central excise duty paid on Aviation Turbine Fuel (ATF) exported as store for consumption on board an aircraft on foreign run (bound for Bhutan) in excess of Rs. 24.94 per KL at 15°C on fulfilment of certain conditions and (ii) for Rs. 72,39,069/- submitted on 9-9-2002 covering the period from 1-4-1998 to 17-9-1998 consequent to the issue of Notification No. 24/2002-C.E. (N.T.), dated 15-7-2002 issued under Section 11C of Central Excise Act, 1944. Thereafter, vide letter dated 5-5-2004 the applicant informed that the excess duty paid for the period 1-4-1998 to 15-10-1998 worked to Rs. 19,85,701/- instead of the amount shown in the refund application. But neither any fresh refund applicant was filed nor were segregated amounts furnished under the two different Rules/Sections. A show cause notice was issued by the Assistant Commissioner of Central Excise, Barasat Division on 8-12-2004 directing the applicant to show cause as to why the claims for refund should not be rejected on the following grounds :- (i) Failure to prove that higher incidence of duty has not been passed on ....
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....on of mind and consequential relief should have been granted to them. 4.2 That till the issue of Notification No. 39/98-C.E. (N.T.), dated 18-9-1998 which amended the condition No. (i) of Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 to include 'Bhutan' in the list of countries for extending the benefit of rebate of duty, the applicant was supplying duty paid ATF to Druk Airways as was done for other domestic airlines. The Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 as amended allowed rebate of duty of excise paid on ATF if exported as stores for consumption on board an aircraft on foreign run in excess of Rs. 24.94 per KL at 15°C. 4.3 That Central Government by issuing Notification No. 24/2002-C.E. (N.T.), dated 15-7-2002 issued under Section 11C of the said Act has directed not to recover duty of excise payable on ATF supplied to Druk Airways, Bhutan during 1-4-1998 to 17-9-1998 by Indian Oil Corporation. 4.4 That they were not required to pay duty on ATF supplied to Druk Airways, Bhutan during 1-4-1998 to 17-9-1998 and became eligible for refund of duty already paid because of late receipt of the said two notifications. That they initial....
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....applicant who reiterated the grounds of appeal. Shri Raj Kumar, Commissioner, Central Excise, Kolkata-III appeared on behalf of the department and stated that the Order-in-Appeal is just legal and should be upheld. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. Upon perusal of records, Government observes that the applicant filed two refund claims (i) for Rs. 3,70,019.53 submitted on 9-11-1998 covering the period from 18-9-1998 to 15-10-1998 consequent to the issue of Notification No. 39/98-C.E. (N.T.), dated 18-9-1998 amending the Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 issued under Rule 12 of the erstwhile Central Excise Rules, 1944 under which the Central Government has allowed rebate of central excise duty paid on Aviation Turbine Fuel (ATF) exported as store for consumption on board an aircraft on foreign run (bound for Bhutan) in excess of Rs. 24.94 per KL at 15°C on fulfilment of certain conditions and (ii) for Rs. 72,39,069/- submitted on 9-9-2002 covering the period from 1-4-1998 to 17-9-1998 consequent to the issue of Notification No. 24/2002-C.E. (N.T.),....
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....s. 24.94 per KL at 15°C on fulfilment of certain conditions. Subsequently the applicant vide letter dated 5-5-2004 claimed amount for the period 1-4-1998 to 15-10-1998 of Rs. 19,85,701/- instead of Rs. 72,39,069/- and Rs. 3,70,019.53 claimed earlier. 9. Government first takes up the claim for the period 1-4-1998 to 17-9-1998 submitted consequent to the issue of Notification No. 24/2002-C.E. (N.T.), dated 15-7-2002 issued under Section 11C of Central Excise Act, 1944 and examines it in terms of the stipulated provisions and notification. Notification No. 24/2002-C.E. (N.T.), dated 15-7-2002 reads as under : 9.1 "Whereas the Central Government is satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non-levy thereof) on Aviation Turbine Fuel, falling under Chapter 27 of First Schedule to the Central Excise Tariff Act, 1985 under the Central Excise Act, 1944 and according to the said practice, the duty of excise in excess of the amount specified against S. No. 2 of the table in the Notification No. 46/94-C.E. (N.T.), dated 22-9-1994 leviable on said Aviation Turbine Fuel supplied to Druk Air, Bhutan by India....
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....son claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, in the form referred to in sub-section (1) of section 11B, before the expiry of six months from the date of issue of the said notification." From the plain reading of the above section that a claim for refund for duty paid which was not required to be paid in terms of the above notification will have to be made in terms of Section 11C(2) read with Section 11B(1) and (2) and Section 12 ibid in terms of the above notification. 9.3 Government also observes that under Section 35EE of the Central Excise Act, 1944 a revision application against the Order of Commissioner (Appeals) passed, under Section 35A ibid lies with Government only if such orders relate to cases as mentioned in provision to sub-section (1) of Section 35(B) of the Act. Sub-section (1) of Section 35B of Central Excise Act, 1944 reads as under :- ''Provided that (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one wa....
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...."directs that rebate of duty paid on mineral oil products falling under Chapter 27 of the Schedule to the Central Excise Tariff Act, 1985 exported as stores for consumption on board an aircraft on foreign run, shall be allowed subject to the following conditions, namely :- (i) that in regard to foreign countries having land frontiers with India, this notification shall apply to air flights to Pakistan, Bangladesh and Burma". (ii) that the export shall take place in accordance with the procedure set out in these rules except in respect of such products as remain on board an aircraft after completion of an internal flight but prior to its reversion to foreign run, the rebate for which shall be granted without production of documents evidencing the payment of duty thereon. The proper officer of Customs shall certify in the manner specified by the Commissioner of Central Excise the quantity of products left on board for determining the quantum of rebate therefor; (iii) that the rebate shall be at the rate of duty in force on the date the aircraft leaves the last airport on the foreign journey; (iv) that the amount of rebate of duty admissible i....