TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 575
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..../125-127/Reb/16-17 dated 18.12.2016; (v) Rebate/1898-1903/Centurion/Div-I/16-17 dated 12.01.2017 & (vi) Div-III/CE/198-200/Reb/16-17 dated 15.02.2017, passed by the Assistant Commissioner, Vadodara (Annexure "K" to the petition), whereby he has rejected the rebate claim of the petitioners on the ground that the same is directly opposed to the judgment of this court in the case of Zenith Spinners v. Union of India, 2015 (326) ELT 97 (Guj.). 4. The first petitioner, a company, is engaged in the manufacture of various pharmaceutical products. During the course of its business, the first petitioner either sold in the local market or exported such products and received various kinds of inputs which were duty paid. The petitioners availed of Cenvat credit on such inputs, inasmuch as, they had paid for such credit in the purchase price of the goods. In the normal course of business, the petitioners also obtained certain inputs without payment of duty under the procedure prescribed under rule 19 of the Central Excise Rules, 2004 (hereinafter referred to as "the rules"). Rule 19 of the rules permits purchase of inputs required to be used for exporting the goods without payment of duty on f....
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....o point out that Notification No.10/2004-CE (NT) dated 03.06.2004 has been struck down by this court as being ultra vires the Central Excise Rules, 2002 and hence, it was not permissible for the adjudicating authority to rely upon the same. It was further pointed out that an appeal was preferred against the above referred decision of this court before the Supreme Court and the Supreme Court vide its order dated 28.08.2015 in the case of Union of India v. Zenith Spinners, 2015 (326) ELT 23 (SC), had not interfered with the said order. The attention of the court was invited to the findings recorded by the adjudicating authority in paragraphs 8.5 to 8.7 of the impugned order, to point out that the adjudicating authority has sought to distinguish the above referred decision of this court in the light of the decision of the Supreme Court, and submitted that in view of the fact that the Supreme Court has upheld the decision of this court, the question of distinguishing the decision of this court did not arise. It was, accordingly, urged that the impugned order being contrary to the law laid down by this court, deserves to be quashed and set aside. 7. On the other hand, Mr. Ankit Shah, l....
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.... respondents, a submission was made that in any case, the said notification would apply prospectively and that the Central Board of Excise and Customs had thereafter issued circular clarifying that the said notification would apply prospectively. That Court observed that most of the demand in that case pertained to the period prior to the issuance of the said notification, and that on that ground itself, the show cause notice pertaining to that period would be bad in law. The court further observed that as the subject matter had become almost tax neutral, it was not necessary to entertain the appeal. Significantly, the court while entertaining the appeal, has not interfered with the decision of this court whereby the entire notification has been set aside. 12. In Zenith Spinners v. Union of India (supra) this court held thus: "10. Rule 18 of the Rules stipulates that where any goods are exported the exporter becomes entitled to rebate of duty which may be granted by way of a notification issued by the Central Government. The rebate is of duty paid on final products or duty paid on inputs used in the manufacture or processing of such final products viz. The goods which are export....
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....ding of Sub-rule (1) and Rule (2) of Rule 19 of the Rules the opening portion grants an option to the exporter by virtue of the language used. In Sub-rule (1) it is stated any excisable goods may be exported, and in Sub-rule (2) it is stated any material may be removed. Therefore, the exporter has an option to export the final products without payment of duty or use inputs which are procured without payment of duty in the manufacture or processing of goods which are to be exported. At the other end, the later portion of Sub-rules (1) and (2) of Rule 19 of the Rules grants discretion to the Commissioner to approve the option that is exercised by an exporter by use of the phrase as may be approved. If the interpretation which is placed on the provision by the respondent authorities by issuance of impugned Notification is accepted, it would not only take away the option granted to the exporter but also take away the discretion granted to the Commissioner by the Rule. It is settled position that by virtue of exercise of powers of issuing a notification which is for the purposes of imposing conditions, safeguards and procedure the authority cannot exceed the jurisdiction by providing fo....