TaxTMI 
TaxTMI 
2021 (2) TMI 303
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.... No. 04/AC/REFUND/2010 dated 29.09.2010. 2. This appeal has been admitted on the following substantial questions of law: a. Whether in the facts and circumstances of the case and in law, an application for refund of countervailing duty is maintainable under Section 11B of the Central Excise Act? b. Whether in the facts and circumstances of the case, the order passed by learned CESTAT is bad in law and on facts? Case of the Appellant: The appellant is a Company within the meaning of Companies Act, 1956 engaged in the manufacture of Excisable goods, Opal Glassware and Kitchenware falling under Central Excise Sub-heading No. 7013 2900 / 7013 3900 respectively. During the course of business, appellant exported 880 dinner sets (124 pieces) valued at Rs. 33,50,160.00 and 1050 dinner sets (26 pieces) valued at Rs. 11,59,725.00 against ARE-1 No. 01/2009-10 dated 10.06.2009 to M/s Kaspian Kalay Giti, Tehran, Iran under General Bond No. 31/MC-Kol/2009-10 dated 22.04.2009. The buyer vide letter dated 04.10.2009 informed the appellant to take back all the containers as they were not able to clear the same from customs and take delivery. On return of the goods on Kolk....
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....ise Duty charged only on the importation of the goods, payment of duty at the time of clearance would be amounting to double payment of central excise duty. It is also averred that Cenvat Credit of CVD is allowed under C.C.R, 2004. That the re-imported goods were cleared for home consumption after re-packaging on payment of duty which would be treated as inputs under Cenvat Credit Rules, 2004. Since refund of CVD can be made only under the provisions of Central Excise Act and Rules, therefore, the Adjudicating Authority sanctioned the refund.The appellant claims to have filed the following documents before the learned Tribunal (a) Appeal and the Stay Application of the appellant against the Order dated 16.04.2012 passed by the Ld. Commissioner (Appeals) of Central Excise & Service Tax, Ranchi (b) Order-in-Original dated 29.09.2010; (c) Order-in-Appeal 19/RAN/2012 dated 16.04.2012 (d) Memorandum of Cross-Objection of the appellant; (e) Stay Order of the Tribunal dated 10.09.2012 (f) Final Order of the Tribunal dated 29.05.2017 Learned Tribunal dismissed the appeal upon hearing the counsel for the parties and upon consideration of th....
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.... if credit/refund is not allowed, the same would lead to double taxation on the said good, one as CVD under section 3 of the Customs Tariff Act, 1985 and other as Central Excise Duty paid at the time of home consumption of the said goods. Case of the Respondent 4. On the part of the Revenue, the following stand has been taken. That the learned Tribunal has passed the impugned order, as per correct interpretation of law. The CVD is a duty of Customs and governed by the Customs Act. It is levied and collected at Kolkata Customs. The Claimant has submitted refund claim of CVD under the provisions of Section 11B of Central Excise Act, 1944. That the appellant had exported the consignment to Tehran, under Bond without payment of duty. Since the buyer did not receive the goods, appellant took back the returned goods on payment of CVD. In reply to para-9 of the Memo of Appeal, it is stated that the appellant has nowhere mentioned that he had filed refund claim of CVD at Kolkata Port. As per Rule 16 of C.E.R, 2002, when any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason,....
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....duty and interest, if any, paid on such duty- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the p....
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....unal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). .............................................................................................................." Section 12 A reads as under:- "Section 12-A. Price of goods to indicate the amount of duty paid thereon.- Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold." 7. As per section 11-B, any person claiming refund of any duty of excise and interest, if any, paid on such duty, may make an application for refund of such duty, before the expiry of one year from the relevant date in such form and manner, as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents r....
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.... provides that any article is imported into India shall, in addition, be liable to duty (hereinafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. For the purposes of the appreciation of the case at hand, section 3 of the Customs Tariff Act, 1975 is quoted hereunder: "3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges.-- (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article: Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty....
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....e purpose of appreciating the case of the parties, it is also relevant to quote the provisions of Rule 16 of the Central Excise Rules, 2002. "Rule 16. Credit of duty on goods brought to the factory. - (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re- conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under sub- rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. Explanation. - The amount paid under this sub-rule shall be allowed as CENVAT cre....
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....sed for providing any [output service, or]; [(v) all capital goods which have a value up to ten thousand rupees per piece.] but excludes - (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; [(B) any goods used for - (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of service portion in the execution of a works contract or construction service as listed under clause (b) of section 66E of the Act;] [(C) capital goods, except when,- (i) used as parts or components in the manufacture of a final product; or (ii) the value of such capital goods is up to ten thousand rupees per piece;] (D) motor vehicles; (E) any goods, such as food items, goods used in a guesthouse, residential colony, club or a recreation facility and clinical establishment, when such goods are used primarily for personal use or consumption of any employee; and (F) any goods which have no relationship whatsoever with the manufacture of a final product. ........
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....case goods are sent directly to the job worker on the direction of the manufacturer or the provider of output service, as the case may be]: Rule 6. ............................................................... Explanation 2. - No CENVAT credit shall be taken on the duty or tax paid on any goods and services that are not inputs or input services." 11. From perusal of Rule 3 (vii) of Cenvat Credit Rules, 2004, it is clear that the additional duty leviable under section 3 of the Customs Tariff Act, is equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via) and are eligible to be taken as Cenvat Credit by a Manufacturer or producer of final products or a provider of output service. Sub-rule (4) thereof specifies as to where Cenvat Credit may be utilized for payment. 12. Learned counsel for the appellant has by placing reliance upon the decision of Delhi High Court in the case of Commissioner of Central Excise, Delhi-I (Supra) and that of Punjab & Haryana High Court in the case of Simplex PharmaPvt. Ltd (Supra) has argued that additional duty under section 3 of the Customs Tariff Act, 1975 is treated as countervailin....
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....e case may be. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Principal Commissioner or Commissioner, as the case may be. (3) The export under sub-rule (1) or sub-rule (2) shall be subject to such conditions, safeguards and procedure as may be specified by notification by the Board." 13. In the light of the statutory provisions discussed above, in the present case, finished goods were exported against ARE-1 No. 01/2009-10 dated 10.06.2009 under General Bond No. 31/MC-Kol/2009-10 dated 22.04.2009. Goods were returned by the foreign buyer as it could not get clearance of the Customs and take its delivery. As such, the wholly finished goods were returned back to Kolkata Port. On re-importation of the finished goods, Customs authorities allowed clearance of the goods on payment of additional duty amounting to Rs. 4,28,424/- vide Bill of Entry No. 518266 dated 09.01.2010. Receipt of such goods in the appellant's factory was also intimated to the Superintendent of Central Excise, Madhupur....
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.... Rule 16 of C.E.R, 2002. 15. In the case of Commissioner of Central Excise, Delhi-I (Supra), the question before Delhi High Court was,whether the amendment made in the Notification No. 12/2007 with effect from 01 st March 2007 were clarificatory or a substantive amendment and therefore, prospective in nature and not retrospective? The assessee in the said case were manufacturer exporters of stainless steel utensils and had made applications for rebate / refund for countervailing duty or additional duty paid on the inputs utilized for manufacture. Those applications were made under Rule 18 of C.E.R., 2002 read with Notification No. 21/2004-CE(NT) dated 06th September 2004. In some cases, applications were dismissed and other applications were allowed. The matters were taken up in appeals before the Commissioner (Appeals) and were made subject matter of the Revision petitions under Section 35EE of the C.E.A, 1944. The Central Government had held that the Respondent No. 2 - assessees are entitled to rebate/refund of CVD paid on the inputs. The contention of the Revenue was that CVD paid is not excise duty as such. The Central Excise Act, 1944 is a separate Act and rebate / refund o....
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....iled the Cenvat Credit, then he would have got the refund of the same under the provisions of Section 11B(2). Eligibility of the applicant for the benefit of Cenvat Credit on the CVD was not disputed by the Revenue.Therefore, it was found that the applicant was entitled to payment/refund of the said amount under Section 11B(2) of the Act. Based on these findings and by placing reliance upon the provisions of Cenvat Credit Rules, it was held that the rebate of countervailing duty paid on inputs/materials used in the manufacture of exported goods is admissible to the applicants under Rule 18 of C.E.R, 2002 read with Notification No. 21/2004 dated 6th September 2004, provided no Cenvat Credit or drawback is availed by the applicants. Learned Division Bench of Delhi High Court noticed the reasoning given by the Joint Secretary in its order and also referred to Rule 18 of C.E.R, 2002, Rule 3 and 5 of Cenvat Credit Rules, 2004 and also the judgment on the nature of additional duty imposed under section 3 of Customs Tariff Act, 1975 and held that the amendment Notification No. 12/2007 fully applied to all cases and there was no discrimination. Even without the aforesaid notification, ther....