Madras High Court
M/S.Larsen & Toubro Ltd vs Union Of India on 12 September, 2019
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No.19607 to 19609 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2019
CORAM
THE HONOURABLE Dr. JUSTICE ANITA SUMANTH
W.P.No.19607 to 19609 of 2006
M/s.Larsen & Toubro Ltd.,
ECC Division,
Mount Poonamallee Road
Manapakkam, Chennai – 89.
...Petitioner in the above W.Ps
Vs.
1. Union of India,
rep. By Joint Secretary,
Department of Revenue,
Ministry of Finance (Revision
Application Unit) Jeevanthi Building,
Parliament Street, New Delhi.
2. Commissioner of Central Excise (Appeals)
Mahatma Gandhi Road,
26/1, Nungambakkam, Chennai – 34.
3. Asst. Commissioner of Central Excise,
Pondicherry.
4. Commissioner of Central Excise, Pondicherry
...Respondents in the above W.Ps
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorari, calling for the impugned
proceedings of the first respondent passed in order File No.321, 322 and
323/2005 dated 31.8.2005 and quash the same.
For Petitioner : Mr.R.Raghavan
For Respondent : Mr.A.P.Srinivas
Senior Standing Counsel
------------
http://www.judis.nic.in
1/18
W.P.No.19607 to 19609 of 2006
COMMONORDER
Heard Mr.R.Raghavan, learned counsel for petitioner and Mr.A.P.Srinivas, learned Senior Standing Counsel for respondents.
2. The petitioner is a company engaged in the manufacture of various goods including re-rolled products of iron and steel (in short 'goods'). The goods are subject to Duty in terms of Section 3 of the Central Excise Act, 1944 (in short 'Act').
3. The petitioner had claimed rebate in terms of Rules 12(1) (a) and 12(1)(b) of the Central Excise Rules, 1944 (in short 'Rules') during the period July, 1998 to April, 1999 in respect of nine (9) export consignments. Just prior thereto, in 1997, the basis of levy of central excise duty was shifted, in terms of Section 3A of the Act from 'quantity of goods manufactured' (and removed) to the 'annual capacity of production'.
4. The claims were allowed vide order dated 14.09.1998 by the Assistant Commissioner of Central Excise (R3). Subsequently, the claims were sought to be reversed on the ground that the petitioner had made duel claims, both under Rule 12(1)(a) and 12(1)(b) at the rate of Rs.300 per MT under the former and on the basis of 12% of value of inputs used in the export goods, under the latter. The proposal to show cause was to deny rebate under Rule 12(1)(b) and modify the claim under Rule 12(1)(a) to 12% of FOB value as against 300 MT, as claimed by the petitioner. The proposal relating to Rule 12(1)(a) was accepted and the petitioner objected only to the proposal under Rule 12(1)(b). Orders were passed confirming both proposals, as against which http://www.judis.nic.in statutory appeals were filed before the Commissioner of Central Excise 2/18 W.P.No.19607 to 19609 of 2006 (Appeals) (R2), which came to be allowed.
5. The Commissioner of Central Excise (R4), sought a revision of the appellate orders. In all, a total of four revision applications were filed by R4 before the Union of India (R1). The revision applications came to be allowed by R1 holding that the claim under Rule 12(1)(a) is to be restricted to actual duty paid and that the petitioner was not eligible for any claim under Rule 12(1)(b) at all. It is as against the aforesaid order that the present Writ Petitions have been filed.
6. The factual details of claims made, show cause notices (SCN) issued, orders-in-original (OIO) passed, appeals filed with appeal references, details of the orders in appeal (OIA), details of revision applications filed and orders passed have been tabulated by the petitioner in the Writ Affidavit and are extracted herein for the sake of completion of the narration:
W.P.No.19607 of 2006:
Table 1 (A) AR-5 No. & Date 1/03.07.98 (B) Weight in Kgs 190.520 1(a) Claim under Rule 12(1)(a) @ Rs.300/- per Rs.57,156/-
M.T. read with CEN 31.98 dt.24.8.98.
(b) Claim under Rule 12(1)(b) read with CEN Rs.2,66,300/-
42/94 dt.22.9.94 (i.e.) on invoice price of inputs used in export goods
2. Date of A.C's order allowing claim (details) 14.09.98
(a) Claim allowed under Rule -12(1)(a) Rs.57,156/-
(b) Claim allowed under Rule – 12(1)(b) Rs.2,66,300/-
3. Appeal if any filed against order at Sl.No.(2) Nil above with gist of grounds in appeal
4. Date of SCN issued for recovery of claim 02.08.99 allowed http://www.judis.nic.in
(a) Demand in SCN and reasons for demand Rs.24,299/-
3/18W.P.No.19607 to 19609 of 2006 SCN states claim under Rule-12(1)(b) is not sustainable and claim under Rule 12(10(a) to be raised to 12% of FOB issues demand on this basis
5. O.I.O. (of A.C.) with reference to SCN at 21/2000 dt.6.3.2000 Sl.No.(4)
(a) Amount demanded in the OIO Rs.24,299/-
6. L&T Appeal Ref.to CCE(A) A.No.201/02
7. O.I.A. with reference to above appeal 429 to 432/03 dt.08.08.03
8. Rev.Appeal No.against OIA at Sl.No.(7) F.No.198/114-116/03- RA CUS
9. Order in R.A. 321-323/05 dt.31.8.2005 Table 2 (A) AR-5 No. & Date 2/10.09.98 3/10.09.98 4/10.09.98 (B) Weight in KGs 11.100 143.640 115.120 1(a). Claim under Rule Rs.3,330/- Rs.43,092/- Rs.34,536/-
12(1)(a) @ Rs.300/-
per M.T. read with CEN 31/98 dt.24.08.98.
(b). Claim under Rule Rs.19,140/- Rs.2,47,684/- Rs.1,98,507/-
12(1)(b) read with
CEN 42/94 dt.
22.09.94 (i.e.) on
invoice price of inputs
used in export goods.
2. Date of A.C's order 05.01.99
allowing claim (details)
(a). Claim allowed under Rs.3,330/- Rs.43,092/- Rs.34,536/-
Rule-12(1)(a)
(b). Claim allowed under R.19,140/- Rs.2,47,684/- Rs.1,98,507/-
Rule-12(1)(b)
3. Appeal if any filed Nil
against Order at Sl.
No.(2) above with gist
of Grounds in appeal
4. Date of SCN issued for 01.07.99
recovery of claim
allowed
http://www.judis.nic.in (a) Demand in SCN and Rs.4,851/- Rs.62,773/- Rs.50,310/-
4/18
W.P.No.19607 to 19609 of 2006
reasons for demand SCN states claim under Rule-12(1)(b) is not
sustainable and claim under Rule-12 (1)(a) to be raised to 12% of FOB. Issues demand on this basis.
5. O.I.O (of A.C.) with 285/99 dt.09.12.99 reference to SCN at Sl.No.(3)
(a) Amount demanded in Rs.4,851/- Rs.62,773/- Rs.50,310/-
the OIO
6. L & T Appeal Ref. to A.No.200/02 CCE (A).
(A.No.97/2000-TRY)
7. O.I.A. with reference 429 to 432/03 to above appeal dt.08.08.03
8. Rev.Appeal No.against F.No.198/114-116/RA.CUS.
OIA at Sl.No.(7)
9. Order in R.A. 321-323/05 dt. 31.08.2005 Table 3 (A) AR-5 No. & 5/18.09.98 6/25.09.98 7/05.10.98 8/30.11.98 9/21.04.
Date 99(B) Weight in KGs. 66.650 149.590 117.590 73.060 63.720 1(a) Claim under Rs.19,995/- Rs. Rs. Rs. Rs.
Rule 12(1)(a) 44,859/- 35,277/- 21,918/- 19,116/ @ Rs.300/- Per
-
M.T. r/w CEN 31/98 dt.24.08.98
(b) Claim under Rs. Rs. Rs. Rs. Rs.
Rule 12(1)(b) 1,17,084/- 2,63,762/- 1,66,860/- 1,03,672/- 92,222/ r/w CEN 42/94
-
dt.22.9.94 (i.e.) 12% on inv. Price of inputs used in export goods.
2. Date of A.C's C.No.V/72/18/162/98 dated 31.8.99 order allowing claim (details)
(a) Claim allowed Rs. Rs. Rs. Rs. Rs.
under R-
1,04,878/- 2,35,294/- 1,85,234/- 1,05,693/- 87,330/ 12(1)(a) @
-
12% of FOB
value
(b) Claim allowed NIL
http://www.judis.nic.in
5/18
W.P.No.19607 to 19609 of 2006
under R-
12(1)(b)
3. Appeal if any L & T files appeal against rejection of claim under Rule-
filed against 12(1)(b)
order at
Appeal Ref.A.No.197/02 (317/99-TRY) Sl.No.(2) above with gist of grounds in appeal.
Appeal reference
4. Date of SCN 29.08.2000 issued for recovery of claim allowed
(a) Demand in SCN Rs. Rs. Rs. Rs. Rs.
and reasons for 84,883/- 1,90,435/- 1,49,977/- 83,775/- 68,214/- Demand The SCN states that the claim under Rule-12(1)(a) 12% of FOB value is subject to actual duty paid. Hence restricts the claim to that extent and demands recovery of balance amount sanctioned.
5. O.I.O. (of A.C.) 37/2001 dated 29.11.2001. This order confirms demands as with reference proposed in SCN dt.29.08.2000 referred in Sl.No.4(a) above. to SCN at This order also rejected petitioner's contention that the SCN S.No.(4) is barred by limitation.
6. L & T Appeal A.No.208/02 (31/02-TRY) ref. to CCE (A) with reference to order @ Sl.No.(5)
7. O.I.A. with 429 to 432/03 dt. 08.08.2003 reference to Allows appeals 197/02 & 208/02 in favour of L & T. above appeals at Sl.Nos.(3) & (6)
8. Rev. Appeal No. F.No.198/114-116/RA-CUS/ against OIA at Sl. No.(7)
9. Order in R.A. 321-323/05 dated 31.08.2005 W.P.No.19608 of 2006:
Table-1 (A) AR-5 No.& Date 1/03.07.98 (B) Weight in KGs 190.520 1(a) Claim under Rule 12(1)(a) @ Rs.300/- per Rs.57,156/-
http://www.judis.nic.in M.T.read with CEN 31/98 dt. 24.8.98 6/18 W.P.No.19607 to 19609 of 2006
(b) Claim under Rule-12(1)(b) read with CEN 42/94 Rs.2,66,300/-
dt. 22.9.94 (i.e.) on invoice price of inputs used in export goods.
2. Date of A.C.s order allowing claim (details) 14.09.98
(a) Claim allowed under Rule-12(1)(a) Rs.57,156/-
(b) Claim allowed under Rule-12(1)(b) Rs.2,66,300/-
3. Appeal if any filed against order at Sl.No.(2) Nil above with gist of grounds in appeal.
4. Date of SCN issued for recovery of claim allowed 02.08.99
(a) Demand in SCN and reasons for demand Rs.24,299/-
SCN states claim under Rule12(1)(b) is not sustainable and claim under Rule-12(1)(a) to be raised to 12% of FOB.
Issues demand on this basis.
5. O.I.O. (of A.C.) with reference to SCN at Sl.No.(4) 21/2000 dt. 6.3.2000
(a) Amount demanded in the OIO Rs.24,299/-
6. L&T Appeal Ref. to CCE (A) A.No.201/02
7. O.I.A. with reference to above appeal 429 to 432/03 dt.08.08.03
8. Rev. Appeal No. against OIA at Sl. No.(7) F.No.198/114-116/03- RA.CUS
9. Order in R.A. 321-323/05 dt.31.08.2005 Table 2 (A) AR-5 No. & Date 2/10.09.98 3/10.09.98 4/10.09.98 (B) Weight in KGs 11.100 143.640 115.120 1(a). Claim under Rule Rs.3,330/- Rs.43,092/- Rs.34,536/-
12(1)(a) @ Rs.300/- per M.T. read with CEN 31/98 dt.24.8.98
(b) Claim under Rule- Rs.19,140/- Rs.2,47,684/- Rs.1,98,507/-
12(1)(b) read with CEN 42/94 dt. 22.9.94 (i.e.) on invoice price of inputs used in export goods
2. Date of A.C's order 05.01.99 Allowing Claim (details)
(a). Claim allowed under Rs.3,330/- Rs.43,092/- Rs.34,536/-
Rule-12(1)(b) http://www.judis.nic.in(b). Claim allowed under Rs.19,140/- Rs.2,47,684/- Rs.1,98,507/-
7/18W.P.No.19607 to 19609 of 2006 Rule-12(1)(b)
3. Appeal if any filed Nil against Order at Sl.No.(2) above with gist of Grounds in appeal
4. Date of SCN issued for 01.07.99 recovery of claim allowed
(a). Demand in SCN and Rs.4851/- Rs.62,773/- Rs.50,310/-
reasons for demand SCN states claim under Rule-12(1)(b) is not sustainable and claim under Rule-12(1) (a) to be raised to 12% of FOB. Demand issued
5. O.I.O. (of A.C.) with 285/99 dt. 9.12.99 reference to SCN at Sl.No.(3)
(a) Amount Demanded in Rs.4,851/- Rs.62,773/- Rs.50,310/-
the OIO
6. L & T Appeal Ref. to A.No.200/02 CCE(A) (A.No.97/2000-TRY)
7. O.I.A. with reference to 429 to 432/03 above appeal dt. 08.08.03
8. Rev.Appeal No. against F.No.198/114-116/RA.CUS.
OIA at Sl.No.(7)
9. Order in R.A. 321-323/05 dt.31.8.2005 Table-3 (A) AR-5 No.& 5/18.09.98 6/25.09.98 7/05.10.98 8/30.11/98 9/21.04.9 Date 9 (B) Weight in 66,650 149,590 117,590 73,060 63.720 KGs 1(a Claim under Rs.19,995/- Rs.44,859/- Rs.35,277/- Rs.21,918/- Rs.19,116 ) Rule /-
12(1)(a) @ Rs.300/- Per M.T. r/w/ Cen 31/98 dt. 24.08.98
(b) Claim under Rs.1,17,084 Rs.2,63,762/ Rs.1,66,860 Rs.1,03,67 Rs.92,222 Rule 12(1) /- - /- 2/- /-
(b) r/w CEN 42/94 dt.
22.9.94 (i.e.) 12% on inv. Price http://www.judis.nic.in of inputs 8/18 W.P.No.19607 to 19609 of 2006 used in exort goods.
2. Date of A.C's C.No.V/72/18/162/98 dated 31.08.99 order allowing claim (details)
(a). Claim Rs.1,04,878 Rs.2,35,294/ Rs.1,85,234 Rs.1,05,69 87,330/-
allowed /- - /- 3/-
under R-
12(1)(a) @
12% of FOB
value
( b) Claim NIL
allowed
under R-
12(1)(b)
3. Appeal if any Appeal filed against rejection of claim under Rule-12(1)(b)
filed against
Appeal Ref.A.No.197/02(317/99-TRY) order at Sl.No. (2) above with gist of grounds in appeal.
Appeal reference
4. Date of SCN 29.08.2000 issued for recovery of claim allowed.
(a) Demand in Rs.84,883/- Rs.1,90,435/ Rs.1,49,97 Rs.83,775/- Rs.68,214/
SCN and - 7/- -
reasons for
The SCN states that the claim under Rule-12(1)(a) @ 12% of Demands.
FOB value is subject to actual duty paid. Hence restricts the claim to that extent and demands recovery of balance amount sanctioned.
5. O.I.O. (of 37/2001 dated 29.11.2001. This order confirms demands as A.C.) with proposed in SCN dt.29.8.2000 referred in Sl.No.4(a) above. This reference to order also rejected petitioners' contention that the SCN is barred SCN at by limitation.
Sl.No.(4)
6. L & T Appeal A.No.208/02 (31/02-TRY) Ref. to CCE (A) with reference to order @ Sl.No.(5) http://www.judis.nic.in7. O.I.A. with 429 to 432/03 dt. 08.08.2003 9/18 W.P.No.19607 to 19609 of 2006 reference to Allows appeals 197/02 & 208/02 in favour of L & T above
8. Rev.Appeal F.No.198/114-116/RA-CUS/ No. against OIA at Sl.No(7)
9. Order in R.A. 321-323/05 dated 31.08.2005 W.P.No.19609 of 2006:
Table 1 (A) AR-5 No.& Date 1/03.07.98 (B) Weight in KGS 190.520 Claim under Rule 12(1) (a) @ Rs.300/- Rs.57,156/-
1(a) per M.T.read with CEN 31/98 dt. 24.8.98. Claim under Rule -12(1)(b) read with CEN Rs.2,66,300/-
(b) 42/94 dt.22.9.94 (i.e.) on invoice price of inputs used in export goods Date of A.C's. order allowing claim 14.09.98 2. (details)
(a) Claim allowed under Rule - 12(1)(a) Rs.57,156/-
(b) Claim allowed under Rule - 12(1)(b) Rs.2,66,300/-
Appeal if any filed against order at Nil
3. Sl.No.(2) above with gist of grounds in appeal Date of SCN issued for recovery of claim 02.08.99 4 allowed Demand in SCN and reasons for demand Rs.24,299/- SCN states claim under Rule-12(1)(b) is not sustainable and claim under
(a) Rule - 12(1)(a) to be raised to 12% of FOB. Issues demand on this basis.
O.I.O (of A.C) with reference to SCN at 21/2000 dt.6.3.2000 5. Sl.No.(4)
(a) amount demanded in the OIO Rs.24,299/-
6. A&T Appeal Ref.to CCE(A) A.No.201/02
7. O.I.A.wih reference to above appeal 429 to 432/03 dt.08.08.03 Rev.Appeal No. against OIA at Sl.No.(7) F.No.198/114-116/03- 8. RA.CUS
9. Order in R.A. 321-323/05 dt.31.08.2005 http://www.judis.nic.in 10/18 W.P.No.19607 to 19609 of 2006 Table 2 (A) AR-5 No.& Date 2/10.09.98 3/10.09.98 4/10.09.98 (B) Weight in KGS 11.100 143.640 115.120 1(a) Claim under Rule 12(1) (a) Rs. Rs. Rs.
@ Rs.300/- per M.T.read with CEN 31/98 dt. 24.8.98. 3,330/- 43,092 34,536/-
(b) Claim under Rule -12(1)(b) read with CEN 42/94 Rs. Rs. Rs. dt.22.9.94 (i.e.) on invoice price of inputs used in 19,140/- 2,47,684/- 1,98,507/- export goods
2. Date of A.C's. order allowing 05.01.99 claim (details)
(a) Claim allowed under Rule - Rs. Rs. Rs.
12(1)(a)
3,330/- 43,092/- 34,536/-
(b) Claim allowed under Rule - Rs. Rs. Rs.
12(1)(b)
19,140/- 2,47,684 1,98,507/-
3. Appeal if any filed against
order at Sl.No.(2) above
Nil
with gist of Grounds in
appeal
4 Date of SCN issued for 01.07.99
recovery of claim allowed
(a) Demand in SCN and reasons Rs. Rs. Rs.
for demand
4,851/- 62,773/- 50,310/-
SCN states claim under Rule-12(1)(b) is not sustainable and claim under Rule - 12(1)(a) to be raised to 12% of FOB. Demand issued accordingly.
5. O.I.O (of A.C.) with reference to SCN at 285/99 dt.9.12.99 Sl.No.(3)
(a) Amount demanded in the Rs. Rs. Rs.
OIO
4,851/- 62,773/- 50,310/-
6. L&T Appeal Ref. to CCE(A) A.No.200/02
(A.No.97/2000-TRY)
7. O.I.A.with reference to
429 to 432/03
above appeal
8. Revenues' Appeal No.against F.No.198/114-116/RA.CUS OIA at Sl.No.(7)
9. Order in R.A. 321-323/05 dt.31.8.2005 http://www.judis.nic.in 11/18 W.P.No.19607 to 19609 of 2006 Table – 3 (A) AR-5 No. & Date 5/18.09.9 6/25.09.9 7/05.10.9 8/30.11.9 9/21.04.99 8 8 8 8 (B) Weight in Kgs. 66.650 149.590 117.590 73.060 63.720 1(a) Claim under Rule Rs. Rs. Rs. Rs. Rs.
12(1)(a) @ 19,995/- 44,859/- 35,277/- 21,918/- 19,116/- Rs.300/- Per M.T. r/w CEN 31/98 dt.24.8.98
(b) Claim under Rule 12(1)(b) r/w CEM 42/94 dt.22.9.94 (i.e.) 12% on inv. Rs. Rs. Rs. Rs. Rs. Price of inputs 1,17,084/- 2,63,762/- 1,66,860/- 1,03,672/- 92,222/- used in export goods.
2. Date of A.C's order allowing C No.V/72/18/162/98 dated 31.8.99 claim (details
(a) Claim allowed under R-12(1)(a) Rs. Rs. Rs. Rs. Rs.
@ 12% of FOB value 1,04,878/- 2,35,294/- 1,85,234/- 1,05,693/- 87,330/-
(b) Claim allowed NIL
under R-12(1)(b)
3. Appeal if any
filed against
L&T files appeal against rejection of claim under Rule- order at Sl.No.(2) 12(1)(b) above with gist of grounds in appeal.
Appeal Ref.A.No.197/02 (317/99-TRY) Appeal reference.
4. Date of SCN 29.08.2000 issued for recover of claim allowed.
(a) Demand in SCN Rs. Rs. Rs. Rs. Rs. and reasons for 84,883/- 1,90,435/- 1,49,977/- 83,775/- 68,214/- Demand The SCN states that the claim under Rule-12(1)(a) @ 12% of FOB value is subjecct to actual duty paid. Hence restricts the claim to that extent and demands recovery of balance amount sanctioned.
5. O.I.O.(of A.C.) 37/2001 dated 29.11.2001. This order confirms demands as with reference to proposed in SCN dt.29.8.2000 referred in Sl.No.4(a) above. SCN at Sl.No.(4) This order also rejected petitioners' contention that the SCN is barred by limitation.
6. L & T Appeal http://www.judis.nic.in 12/18 W.P.No.19607 to 19609 of 2006 (A) AR-5 No. & Date 5/18.09.9 6/25.09.9 7/05.10.9 8/30.11.9 9/21.04.99 8 8 8 8 Ref. To CCE(A).with A.No.208/02 (31/02-TRY) reference to order @ Sl.No.(5)
7. O.I.A. With reference to 429 to 432/03 dt.08.08.2003 above appeals at Sl.Nos. (3) & (6) Allows appeals 197/02 & 208/02 in favour of L & T.
8. Rev. Appeal No. F. No. 198/114-116/RA-CUS/ Against OIA at Sl.No. (7)
9. Order in R.A. 321-323/05 dated 31.08.2005
7. Two Notifications are relevant to appreciate the issue at hand:
Notification No.42/94-CE (NT) dated 21.09.1994 that deals with grant of rebate on materials used in the manufacture of goods for export outside India, i.e., inputs for exports and Notification No.31/98- CE (NT) dated 24.08.1998 that grants a rebate of duty on export of non-alloy steel ingots/billets and hot re-rolling products to any Country, except Nepal and Bhutan. The proviso to the latter Notification states that no rebate of duty paid under Section 3A of the Act on materials used on such exports shall be claimed.
8. The issue of grant of rebate to a manufacturer/exporter on excise duty, where duty has been paid on the final product as well as on the inputs that have gone into manufacturing of the products where such products were ultimately exported, came up for consideration before a Division Bench of the Supreme Court in the case of Spentex Industries Ltd. Vs. Commissioner of Central Excise [(2015) 324 ELT 686]. At paragraph 9, the Bench crystallises the lis before it as follows:
9. Obviously, the controversy that arises is qua interpretation that is to be accorded to Rule 18. The Rule stipulates that the Central Government may, by notification, grant rebate of duty paid on such excisable goods OR duty http://www.judis.nic.in paid on material used in the manufacturing or processing of such goods.
13/18W.P.No.19607 to 19609 of 2006 The word 'OR' which is used in between the two kinds of duties in respect of which rebate can be granted is the bone of contention and it is to be interpreted whether it postulates grant of one of the two duties or both the duties can be claimed. It is also to be noted at this stage itself that Rule 18 is only an enabling provision which empowers the Central Government to issue a notification for grant of these rebates and prescribes the procedure for claiming such rebate(s).
9. The Bench notices Notification No.19/2004 – C.E.(NT) dated 06.09.2004 and Notification No.21/2004 – C.E. (NT) also dated 06.09.2004, relevant portions of which are extracted below:
11. The Central Government has issued Notification No. 19/2004-CE(NT) dated September 06, 2004 which deals with grant of rebate of whole of duty on excisable goods exported. The opening portion of this Notification, which needs to be taken note of, is as under:
“In exercise of the powers conferred by rule 18 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance, Department of Revenue, notification No. 40/2001- Central Excise (N.T.), dated the 26th June 2001, [G.S.R. 469(E), dated the 26th June, 2001] insofar as it relates to export to the countries other than Nepal and Bhutan, the Central Government hereby directs that there shall be granted rebate of the whole of the duty paid on all excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) exported to any country other than Nepal and Bhutan, subject to the conditions, limitations and procedures specified hereinafter- xxx xxx xxx”
13........Notification No. 21/2004- CE(N.T.); dated September 06, 2004 issued by the Government for claiming rebate of whole of the duty paid on excisable goods used in the manufacture or processing of exported goods, as is clear from the reading of the opening para thereof:
“In exercise of the powers conferred by rule 18 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance, Department of Revenue, notification No. 41/2001- Central Excise (N.T.), dated the 26th June, 2001 [G.S.R. 470(E) dated the 26th June 2001], the Central Government hereby, directs that rebate of whole of the duty paid on excisable goods (hereinafter referred to as 'materials') used in the manufacture or processing of export goods shall, on their exportation out of India, to any country except Nepal and Bhutan, be paid subject to the conditions and the procedure specified hereinafter.”
10. Form A.R.E.-2 that was prescribed under Notification No.21/2004 – C.E. (NT) dated 06.09.2004 to enable the assessee to claim both kinds of rebate was also noticed by the Supreme Court. The relevant portion of Form http://www.judis.nic.in 14/18 W.P.No.19607 to 19609 of 2006 in A.R.E.-2 is as under:
'Form A.R.E. 2 Combined application for removal of goods for export under claim for rebate of duty paid on excisable materials used in the manufacture and packing of such goods and removal of dutiable excisable goods for export under claim for rebate of finished stage Central Excise Duty or under bond without payment of finished stage Central Excise Duty leviable on export goods. To The Superintendent of Central Excise, (Address) …...............(full postal address)
1. Particulars of the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise from whom rebate shall be claimed/with whom bond is executed and his complete postal address__________
2. I/We_________of _____ propose to export the under mentioned goods (details of which are given in Table 1 below) to ____ (country of destination) by air/sea/land/post parcel under claim for rebate of duty paid on excisable materials used in the manufacture and packing of such goods.
3. *The finished goods being exported are not dutiable.
Or We intended to claim the rebate of Central Excise Duty paid on clearances of goods for export under notification No. 19/2004-Central Excise (N.T.), dated the 6th September, 2004 issued under Rule 18 of Central Excise Rules, 2002.'
11. The Bench at paragraph 16 dilates on the historical perspective of the Scheme for grant of rebate noticing specifically Rules 12 and 13 that provide for two methodologies to enable an exporter to obtain relief from payment of excise duty, the one on the inputs and the other on excisable goods that are exported. Thus, duality or concurrent claim was permissible and was always part of the statutory scheme. The principal of contemporanea expositio was also invoked by the Bench and the observations of the Court in Desh Bandhu Gupta and Co. and Others Vs. Delhi Stock Exchange Association Ltd. [(1979) 3 SCC 373] as extracted below were cited to lend support to the issuance of two Notifications both giving effect to Rule 18 of the Rules.
“9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the http://www.judis.nic.in issuance of the notification could be looked at for finding out the true 15/18 W.P.No.19607 to 19609 of 2006 intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction. (Maxwell 12th Edn. p. 268). In Crawford on Statutory Construction (1940 Edn.) in para 219 (at pp. 393-395) it has been stated that administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass (1908) ILR 35 Cal 701 at 713 the principle which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha, ILR 43 Cal. 790: (AIR 1916 Cal. 136) has been stated by Mukerjea J. thus:
“It is a well-settled principle of construction that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts; such interpretation may, if occasion arises have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a Court would without hesitation refuse to follow such construction.”
12. After an exhaustive discussion, the Bench concludes holding that the petitioner (in that case) was entitled to claim both rebates and that no restriction was envisaged thereof.
13. Respectfully following the judgment of the Supreme Court as aforesaid, the impugned orders are set aside and these Writ Petitions are allowed. No costs.
12.09.2019 Index: Yes / No Speaking Order / Non Speaking Order ska/sl http://www.judis.nic.in 16/18 W.P.No.19607 to 19609 of 2006 To
1. Union of India, rep. By Joint Secretary, Department of Revenue, Ministry of Finance (Revision Application Unit) Jeevanthi Building, Parliament Street, New Delhi.
2. Commissioner of Central Excise (Appeals) Mahatma Gandhi Road, 26/1, Nungambakkam, Chennai – 34.
3. Asst. Commissioner of Central Excise, Pondicherry.
4. Commissioner of Central Excise, Pondicherry http://www.judis.nic.in 17/18 W.P.No.19607 to 19609 of 2006 Dr. ANITA SUMANTH, J., ska/sl W.P.No.19607 to 19609 of 2006 12.09.2019 http://www.judis.nic.in 18/18