M/S La Opala Rg Ltd vs Commissioner Of Central Excise & ... on 4 February, 2021
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
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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 of excise duty on exports is governed by the
notification and the language of the notification under which the said
rebate/refund can be granted. It was submitted by the Revenue that the
Notification No. 21/2004 dated 6th September 2004 postulated and stipulated
that the refund / rebate of duty could be claimed but it was restricted to the
duty paid under the specified enactments namely, C.E.A, 1944, Additional
Duties of Excise (Goods or Special Importance) Act, 1957, Additional
Duties of Excise (Textiles and Textiles Articles) Act, 1978 and special
excise duty collected under the Finance Act. CVD was not specifically
stipulated and treated as the duty paid under the Notification No. 41/2001. It
was also the case of the Revenue that the Notification No. 21/2004 was
amended subsequently by Notification No. 12/2007 effective from 1st March
2007 and with effect from the said date, CVD was specified as one of the
duties entitled for rebate. It was contended on behalf of the Revenue that the
aforesaid amendment is not retrospective or clarificatory in nature but is
prospective and would apply with effect from 1 st March 2007 and not for the
period anterior thereto. It was stated that CBEC had clarified that the
amendment vide Notification No. 12/2007 CE(NT) dated 01 st March 2007 is
prospective and not retrospective vide letter dated 25th February 2008. In
these background facts, the question before the learned Division Bench of
Delhi High Court was, whether the aforesaid amendment is clarificatory or
substantive and therefore, prospective in nature and not retrospective.