TaxTMI 
TaxTMI 
1988 (5) TMI 43
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....sable commodities. 5. For the purpose of obtaining benefit of Rules 13 and 14 of the Central Excise Rules, the petitioner No. 1 at all material times has been exporting Aluminium products manufactured by it under Bond without payment of Excise Duty. 6. On or about 3rd August, 1979 the petitioner No. 1 received a show cause-cum-demand notice dated 2nd August, 1979, whereby the petitioner No. 1 was required to show-cause to the respondent Assistant Collector, as to why the petitioner should not be required to pay a sum of Rs. 25,316.06 paise as differential amount of Excise Duty as between the duty leviable and rebatable in terms of Notification No. 148-69-C.E, dated 17-5-1969 (Annexure "A"). 7. According to the petitioners, the impugned show cause-cum-demand notice is bad and/or illegal and/or has been issued without authority of law and jurisdiction. 8. It is clear from the said show cause notice that it has been issued as a consequence of an alleged order passed by the Government of India to the effect that the exporters are required to pay the unrebatable quantum of duty under Rule 12 of the Central Excise Rules even in respect of the goods cleared for export under bo....
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....nexure thereto, without payment of Central Excise duty in terms of Rule 13 of the Rules in spite of an order issued by the Central Government to the effect that the exporters should pay the unrebatable quantum of duty under Rule 12 in respect of goods cleared for export under bond without payment of duty for the sake of parity. Regarding the quantum of the rebatable amount reference was made to the Notification No. 148/69-C.E., dated 17-5-1969 issued by the Government of India. 15. The petitioner No. 1 was accordingly directed to pay the differential amount of Central Excise duty in terms of the said Notification in respect of the goods exported and the amount so payable was calculated at Rs. 25,316.06 paise. 16. It is this show cause notice, other similar notices, and the consequential orders which the petitioners have challenged in the instant writ petition. 17. In this connection the preliminary objection raised by Mr. Bhattacharjee, the learned Counsel for the respondents, was as regards to the maintainability of the writ petition on the ground that before invoking the writ jurisdiction of this Court, the petitioners should have exhausted the other statutory remedies a....
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...., Porbandar, Rameswaram, Tuticorin, Kandla, Cuddalore, Okha, Nagapatinam, Pondicherry and Paradip is located. (2) Where the Central Government does not grant under sub-rule (1) either wholly or partially and rebate of duty paid on excisable goods exported to a country outside India, it may, in order to promote exports or fulfil obligations arising out of any treaty entered into between India and the Government of that country provide for payment to the Government of that country an amount not exceeding the duty of excise paid on such goods which are exported out of India to that country." "13. Export under bond of goods on which duty has not been paid. - Goods other than salt, vegetable non-essential oils, and tea all varieties except package tea, under T.C.(2) made from duty paid loose tea, may in like manner be exported without payment of duty, from a warehouse or a licenced factory, provided that export is made in accordance with the procedure set out in the relevant provisions of Chapter IX of these Rules and the owner enters into a bond in the proper form, with such surety or sufficient security, and under such conditions as the Collector approves, in a sum equal at leas....
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.... under Rule 13 normally do not allow any profits to be made locally before the exportation takes place. 27. Regarding other broad differences, Rule 13, as it is, has not been made dependent on Rule 12 since it is self-contained and does not require any notification to be issued as in Rule 12 and there is even no reference therein as to the grant of rebate. Incidentally, the bond that is required to be executed under Rule 13 is not by way of security for payment of the unpaid duty on the exportation being completed. It stands as security only for proper exportation of the goods, which is apparent from the provision that the "bond shall not be discharged unless the goods are duly exported, to the satisfaction of the Collector, within the time allowed for such export, or are otherwise accounted for to the satisfaction of such officer; nor until the full duty due upon any deficiency of goods, not so accounted for, has been paid". 28. Had Rule 13 been supplementary to Rule 12 and exportation under Rule 13 also required payment of rebated duty as per notification issued under Rule 12 even in the absence of any specific mention about any post-exportation payment of duty, specific pr....
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........ the only exemption it can claim is by virtue of notification issued under Rule 12........". It must possibly be due to inadvertence that the Court overlooked the fact that the bond required to be executed under Rule 13 is not for payment of duty but only to secure proper exportation of the goods. And this appears to have resulted in the aforesaid interpretation of the rule, which for obvious reasons is not acceptable. 33. In my judgment, the contention of Mr. Bhattacharjee, the learned Counsel for the respondents, on the basis of the Bench decision of the Delhi High Court in Hindustan Aluminium Corporation's case (supra) that the two Rules are supplementary with the only difference that under Rule 12 duty is paid at the oytset and rebate is claimed after exportation and under Rule 13 no duty need be paid prior (^exportation but is realisable afterwards in terms of the notification issued under Rule 12 does not, therefore, seem to me to be acceptable. The two Rules are basically different and independent of each other. 34. In this connection, reference may be made to the following observation of the Delhi High Court in Hindustan Aluminium Corporation's case (supra) on ....
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.... and such goods before export, may change hands, earning thereby substantial profits to the respective owners in the local market, whereas under Rule 13 there is not such scope or possibility. And this is likely to be the reason why only rebate is granted in the first case and total ex- emption in the other. However, the rules being clear in their language and without any ambiguity, it may not at all be necessary to embark into the reasonings which prompted the subordinate legislative authority to grant only rebate in one case and total exemption in the other case. 40. In my judgment the reasonings so advanced by Mr. Gupta, cannot be said to be devoid of merits. 41. It may be quite possible that in consideration of the fact that notified goods exported under Rule 12 are likely to have earned profits in the local market before exportation, only some rebate is granted in respect thereof and not full exemption as in the other case. 42. Moreover, there is another broad difference between the two Rules as to their applicability. Rule 12 has its application only in respect of those goods which have been taken out for home consumption on payment of excise duty, whereas Rule 13 ap....