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• 3111M-1-6-4 (311 -V) -tRt3 ct4KG-1 2le-c1) *
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th-1-0 : File No : V2(32) 54 /Ahd-I/2013
3TIIF 31.thr cql Order-In-Appeal No..AHM-EXCUS-001-APP-071-13-14
Rcp Date : 03.02.2014 c 4 1-14zi Date of Issue 4 ( t10 1 8ft 3TF4R TaTrT 3fi-zpff (31-tirF-V) ri-rftd . Passed by Shri. Anil Kumar, Commissioner (Appeal-V)
Tr Asst./Deputy Commissioner, Div. - III A'bad - I 7rqt
MP/24/AC/2013-REF.(ST)I ft-41- : 07/10/2013 Tjf'•
Arising out of Order-in-Original Nos. MP/24/AC/2013-REF.(ST) Dated : 07/10/2013 Issued
by Asstt.Commissioner, Central Excise, Div.-III Ahmedabad-I..
3itEdTh—Ji Th-T -11 t-id I Name & Address of the Appellant / Respondent
CHOKSI ORGANICS PVT. LTD.(100% EOU) Ahmedabad
c c f e 13Ttc 31-r -zr 3T& T c u l t tferftel -f
(4,1 3rd trr a-4mm 3uk-4-9- 1TR-1-u ct) ,. Any person a aggrieved by this Order-In-Appeal may file an appeal or revision application, as
the one may be against such order, to the appropriate authority in the following way :
11 ,to 11Ncok rtIairli Revision application to Government of India :
(1) .-414 0-1 I 3Tf4TITE, 1994 8171. 3-1-d7 1TPTM El I reqff z171 cO)
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(i) A revision application lies to the Under Secretary, to the Govt. of India, Revision Application Unit Ministry of Finance, Department of Revenue, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi - 110 001 under Section 35EE of the CEA 1944 in respect of the following case, governed by first proviso to sub-section (1) of Section-35 ibid :
zrft 41 IM 4 w T col itt 7117- TrIR TIT 31-- r commi; za
f+--#r A- 916 c ,-11() TiT zit cl qtr
coktli tfr A-kg- FrF t 4-Hei 4 vi -zrr tu9• (ii) In case of any loss of goods where the loss occur in transit from a factory to a warehouse or to another factory or from one warehouse to another during the course of processing of the goods in a warehouse or in storage whether in a factory or in a warehouse.
(u) f+--4t vrIK Err r fqnci tR zif 4116 1 4-1 u I A trzn-Tr
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(b) In case of rebate of duty of excise on goods exported to any country or territory outside
India of on excisable material used in the manufacture of the goods which are exported
to any country or territory outside India.
(Tr) 44 r I3 vre (Acrra TIT 1 -1-erA *r) fi f+--ar 41z1i er
(c) In case of goods exported outside India export to Nepal or Bhutan, without payment of
duty.
Ti ISTEd-F 3zet 4-11-0 1 41“- aftv iii YT **-1
URI 74 T TIRT 3iTz1W., 3Ti1a. tfTftU TR TIT w lq A 1'4- 40-ftzFr 0.2) 1998
UTRI 109 grtl F4Z14ff TN el- I
(d) Credit of any duty allowed to be utilized towards payment of excise duty on final
products under the provisions of this Act or the Rules made there under and such order
is passed by the Commissioner (Appeals) on or after, the date appointed under Sec.109
of the Finance (No.2) Act, 1998.
(1) *-41T:i \30414 (31.41M "kz1 411c1A, 2001 * fl-ZFT 9 T 31-d-Tfiu f4fer<tz 5l4-4 Tim A -41 stfazft
Mci a r t 31-itzr it9U t c11-1 111-d7 tc4-31-rkzr 74 311re arrtzr
treT 31tu 3TTk-q-9 fTZ1T ■111.11 -firg7 13 TiTZT q.gIcII Z. TT lICaTeTtt t 31111td. tITZT 35--Z
F4dtd- tbci 1171--drff T T TrT21 7317-6 Ti I cd I-I 4 Alt tft 7Tftg I
The above application shall be made in duplicate in Form No. EA-8 as specified under
Rule, 9 of Central Excise (Appeals) Rules, 2001 within 3 months from the date on which
the order sought to be appealed against is communicated and shall be accompanied by
two copies each of the 010 and Order-In-Appeal. It should also be accompanied by a
copy of TR-6 Challan evidencing payment of prescribed fee as prescribed under Section
35-EE of CEA, 1944, under Major Head of Account.
(2) R ■31 3frk- T TTRT v161 sZ-I el ZTTI 1 cn -1731- TEO ZIT 3 TR ct) 41 cr4I
- 11-Trdm
qil ,TIN 3ftZ ■316I 04-1 Yz1141 1000 / — thti lyrdT9 I
The revision application shall be accompanied by a fee of Rs.200/- where the amount
involved is Rupees One Lac or less and Rs.1,000/- where the amount involved is more
than Rupees One Lac.
SIT 'cilcilsZ 3TIrtzt rrzraimR-crr 3T4m. :-
Appeal to Custom, Excise, & Service Tax Appellate Tribunal.
T4IZI \30-11q -1 -Z1-cK 3TPUIZFT, 1944 Ti WTI 35— tf/ * -
Under Section 35B/ 35E of CEA, 1944 an appeal lies to :-
4 , cm I te-41 ict)-f *1411c1 Zip TI-F0 4 1-1I 4M \J (-LI I •cr e IC -ew.III covi
ffs-lisr ftwr 3. 31-17. T. 711, kr'
the special bench of Custom, Excise & Service Tax Appellate Tribunal of West Block
No.2, R.K. Puram, New Delhi-1 in all matters relating to classification valuation and.
3
(71) \JctriRliZqo Li 2 (1) 14 4M7 311-R0 $ 3171-4T (6) 3P 4F, 3T 1c #FET \3c-t-04.-1
[r 'i)414rZ 3111tAll ffziTir$717T "c0-41=1 e-)11-4 r, 3-T-611-qT4Tq 4-)J40\3u, 14EITult -1 4 H, 31TIR-380016.
(b) To the west regional bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) at 0-20, New Metal Hospital Compound, Meghani Nagar, Ahmedabad : 380 016. in case of appeals other than as mentioned in para-2(i) (a) above.
(2) m\--41-4 (3-TO) Pqt-i14c1, 2001 QM 6 $ 3{ - td Acl• fqqtftff f 3i-1AR 3T(11-4171 rrzi-rf0-wR-0 4 3T1:1c f 311 f Trg 31- 71 4 -c4i ,Z vrozri u-161 \3c-414 4 v:1M ') litTT 30 critilqi RI TirFT WCR 5 9TZTI \3 ,41 1 coti t 461Tufq• 1000/- qj 14-At t/ft I vtei 4 TIT7T,vq.m. Z 1TtzT 30 719T --cN• 5 cat ZCI• ZIT 50•17§1c1c er
5000/- tft-e ef1ftl vi S II d c4I4 c 4 TIPT , v:11-v3 4 11f1T 3112 citimi titir ThT WEI• 50 -FUf zfr \3tk4 ve414I t 46i wi:r7 10000/— Eft tTfti 4 itrA -ip-r
TErz .fl. E.tzT 4 &r I Trg T-qz T2TF ft-Rit '9-rPra 1-T
\icro •R:ITziTf4$77 t.i)o Rtaiff t 1 4 -'( TINT w:r7 500/— Eft. t/ft I
The appeal to the Appellate Tribunal shall be filed in quadruplicate in form EA-3 as prescribed under Rule 6 of Central Excise(Appeal) Rules, 2001 and shall be accompanied against (one which at least should be accompanied by a fee of Rs.1,000/-, Rs.5,000/- and Rs.10,000/- where amount of duty / penalty / demand / refund is upto 5 Lac, 5 Lac to 50 Lac and above 50 Lac respectively in the form of crossed bank draft in favour of Asstt. Registar of a branch of any nominate public sector bank of the place where the bench of any nominate public sector bank of the place where the bench of the Tribunal is situated. Application made for grant of stay shall be accompanied by a fee of Rs.500/-.
(3) ftzff ‘311-11 rt7 * ,o ITt f fa-ur rr-St wrd A q-u ,) f Truritqfd- 34-Lit-A-4
*fl 3iTtZT 14 44 to 31T-4714 4-)1 Ti4r4zr 6-11 31)-47r tbrt-i 1 Tidm
- Trzi-rilTR-0T cl R 3reft7 zrr emvz -> 3frkTfff Tr ulidf t
In case of the order covers a number of order-in-Original, fee for each O.I.O. should be paid in the aforesaid manner not withstanding the fact that the one appeal to the Appellant Tribunal or the one application to the Central Govt. As the case may be, is filled to avoid scriptoria work if excising Rs. 1 lacs fee of Rs.100/- for each.
(4) -4IIeitqiu cr6 31f417Ff 1970 TP-TT ,41Nnici That 3IT1-1 Z 34-ditff It 3T-170 37fr 341-\44-9- zr1
3i1-471-1124TR-P-ifi f414ZM 7TRITh-Ttf 31-TT T1tiA c et c.r) Af cT Zn Zri.6.50 WI •-qlqicv-f e1 4 11 61•11 qrft7
One copy of application or O.I.O. as the case may be, and the order of the adjournment authority shall a court fee stamp of Rs.6.50 paise as prescribed under scheduled-I item of the court fee Act, 1975 as amended.
(5) T4-4-1)-ffT1I 1c cb 1-)zkul CP ciic) f4zI1,14 $:taTYz'tit zzIN 311$14•Uf 1T undi wl#Frr m\---4t7 74 \.)clicm 317f1R1 (4q1raf) ffizPi, 1982 14 f'4ftff t I
Attention in invited to the rules covering these and other related matter contended in the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982.
V2(32)54/Ahd-I/2 013
ORDER-IN-APPEAL
M/s. Choksi Organics Pvt. Ltd., 604, Satkar Complex, B/h. Swagat
Complex, C.G.Road, Ahmedabad (here-in- after referred to as " the appellant") has filed
appeal against following impugned Order-In-Original No. MP/24/AC/2013-REF
dated 07.10.2013 (here-in-after referred to as "the impugned order' )
passed by the
Assistant Commissioner, Central Excise, Division-Ill, Ahmedabad-I ( here-in-after
referred to as " the adjudicating authority ").
2. The appellant is engaged in manufacture of S.O. dyes falling under Chapter
Heading No. 32 of the Central Excise Tariff Act, 1985. They have filed refund claim of service
tax amounting to Rs. 1,21,096/- under Notification No 41/2012-ST dt 29.06.2012, in
respect of service tax paid on the taxable services viz., Port charges, Agency charges, THC
Charges and Transport (Services) by Rails utilized for export of goods done during the
period July 2012 to September 2012.
3. During the scrutiny of the rebate claim, in respect of nine Shipping bills, the
difference of amount of rebate claimed under procedure specified in para 2 and paragraph 3
of Notification No 41/2012-S.T, dated 29.06.2012, was found to be less than twenty percent
of rebate available under the procedure specified in paragraph 2. Since it appeared that the
condition of paragraph 1(c) of the said Notification was not fulfilled in these case, a Show
Cause Notice was issued to the appellant seeking as to why the rebate claim shoUld not be
rejected for non compliance of the prescribed condition of the Notification. The adjudicating
authority has rejected the rebate claim amounting to Rs.22,841/- vide the impugned
under the provisions of the aforementioned Notification read with provisions of Section 11 B
of the Central Excise Act, 1944, made applicable to Section 83 of the Finance Act, 1994.
4. The appellant, being aggrieved by the impugned Order, has filed an
appeal against the same before Commissioner (Appeals), on the following grounds:
(i) The impugned order has been passed in violation of principles of natural justice.
(ii) The substantive benefit of rebate of Service Tax paid on the specified services
not utilized in the goods exported has been denied only because they have
followed procedural aspect. They have relied on the following judgements:
(a)Krishna Filament Ltd reported at 2001 (131) E.L.T 726 (G01).
(b) Barot Export reported at 2006 (203) ELT 321.
(ii) Para (c) of the proviso to the said Notification is a procedural condition and
that the adjudicating authority cannot be rejected on the basis of procedural
infraction.
(iii) The details of the nine shipping bills have not been mentioned in the
impugned order and thus they cannot explain the observations of the
adjudicating authority.
5 V2(32)54/Ahd4/2013
(iv) The core of the order pertaining to difference between the amount in Para 3
an Para 3 has not been incorporated in the impugned order, in absence of
which it is not possible to rebut the observations of the adjudicating
authority.
(v) The adjudicating authority has incorrectly relied on the decision of M/s.
Saraswati Sugar Mills as the facts of this case are different from the facts of
the case of the appellant.
(vi) The adjudicating authority has negated the contention of the appellants on
the order passed by Commissioner (Appeals). In Notification No.17/2009, it
is stipulated that no refund claim shall be allowed if the same is for an
amount less than Rs.500/-. In the Notification No. 41/2012-S.T., Para c
stipulates the procedure for the refund claim and therefore consideration of
individual shipping Bills is not warranted.The adjudicating authority has
assumed that the claim has to be Shipping bill wise and that the said
Notification does not use the word 'Individual' shipping bills.
(vii) Para 2 and 3 are mutually exclusive, meaning thereby that the exporter can
claim rebate of the Service Tax by following any of the procedure
prescribed under the above two paras. It is also well settled that if two
options are available to an exporter, the one which is more beneficial can
be adopted by him and there should not be any reason for the department
to reject their claim.
(viii) The adjudicating authority has ignored the intention of the legislation and
has failed to consider that it is not merely a rebate, but is also an exemption
granted on the service tax paid on the specified services utilised by the
exporter in the export of goods.
DISCUSSION AND FINDINGS:
5. Personal Hearing was held on 22.01.2014 and Shri N.K.Tiwari,
Consultant and Shri I. K Purohit appeared before me and reiterated the submissions
made in their memorandum of appeal. The rebate claim has been rejected, as the
difference between the amount of the rebate claimed under procedure prescribed
in para 2 and para 3 of the Notification no. 41/2012-S.T., dated 29.6.2012, is less
than 20% of the rebate available under the procedure specified in the para 2 of the
said notification. The Para 2 and 3 are mutually exclusive and since they were
unable to go for the procedure laid down under para 2, they have opted for the
procedure under Para 3. They have requested that their appeal be allowed as
substantive benefit cannot be denied on the basis of procedural aspect.
6 V2(32)54/Ahd-I/2 013
6, I have gone through the facts of the cases and the written
submissions made by the appellant in their memorandum of appeals. I find that the
issue to be decided is whether in respect of the Shipping bills as detailed in Para 3
above, Rebate claim to the extent of that amount, wherein the condition preseribed
in the Notification No. 41/2012-S.T., dated 29.06.2012, has not been fulfilled, is
required to be rejected or otherwise.
7. At the outset, I find that the appellant has submitted that the details
of the relevant nine shipping bills, against which the rebate has been partly
denied, have not been mentioned in the impugned order and thus they are finable
to explain the observations of the adjudicating authority. I find that this allegation
to be baseless, as the details of the Shipping Bills have been mentioned in the
Show Cause Notice issued to them, which was eventually adjudicated vide the
impugned order.
8. Extract of Notification No. 41/2012-Service Tax, dated 29.06.2012,1(in
relation to the issue under dispute) states as under:
1(c) the rebate under the procedure specified in paragraph 3 shall not be claimed wherever the difference between the amount of rebate under
the procedure specified in paragraph 2 and paragraph 3 is less than twenty per cent of the rebate available under the procedure specified in
paragraph 2;
".(2) the rebate shall be claimed in the following manner, namely:-
(d) the exporter shall make a declaration in the electronic shipping bill or bill of export, as the case may be, while presenting the same to the
proper officer of customs, to the effect that--
(i) the rebate of service tax paid on the specified services is claimed as a percentage of the declared Free On Board(FOB) value of the said
goods on the basis of rate specified in the Schedule .
(ii) no further rebate shall be claimed in respect of the specified services, under procedure specified in paragraph 3 or in any other
manner, including on the ground that the rebate obtained is less than the service tax paid on the specified services;
(iii)conditions of the notification have been fulfilled;
(e) service tax paid on the specified services eligible for rebate under this notification, shall be calculated by applying the rate prescribed for
goods of a class or description, in the Schedule, as a percentage of
the FOB value of the said goods;
(3) the rebate shall be claimed in the following manner, namely:-
(a)rebate may be claimed on the service tax actually paid on any specified
service on the basis of duly certified documents;
(b) the person liable to pay service tax under section 68 of the said Act on
the taxable service provided to the exporter for export of goods shall not
be eligible to claim rebate under this notification;
if
7
V2(32)54/Ahd-I/2013
(c) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1;....."
9. Under the above Notification, two procedures have been specified for
claiming the refund of service tax. The first procedure, as stipulated in Para 2 of the said
Notification allows rebate of service tax paid on eligible input services as a percentage
value of the declared Free on Board (FOB) value of the export goods on the basis of rate
specified in the schedule, which is to be claimed from Customs authorities. The other
procedure as stipulated in Para 3 is that the rebate may be claimed on the service tax
actually paid on any specified service on the basis of duly certified documents, which is
to be claimed from Excise authorities. However, the foremost condition as stipulated in
Para 1 (c) of the Notification is that the rebate cannot be claimed under the procedure as
per Para 3, wherever the difference between the amount of rebate under the procedure
of rebate as per Para 2 i.e. as a percentage on FOB value of goods and rebate on the
basis of documents as per Para 3, is less than twenty per cent of the rebate available
under the procedure as per Para 2. It is crystal clear that if the difference between the
amount of rebate calculated as per procedure laid down under Para 2 and at the rebate
claimed as per the procedure laid down under Para 3, is less that 20 % of the rebate
available under Para 2, the Rebate cannot be claimed under Para 3. In such a scenario,
the appellant is eligible for rebate for the amount as calculated as per Para 2 of the
notification only and cannot claim the rebate under Para 3 of the Notification ibid.
10. The appellant has relied on the Order-in-Appeal No.55 to 61/2012(AHD-I)
CE/MM/COMMR(A)/AHD dated:29.04.2012, wherein it was held that it was not proper to
take individual shipping bills for denying the claim of the appellant on the ground that
each shipping bill was less than Rs.500/-.It was further held that the above reasoning
would have been sustainable if the entire refund claim had been less than Rs.500/-. I
find that the said Order-in-original pertains to a totally different issue and it pertained to
interpretation of Notification No.17/2009, dated 7.7.2009.In the present case, the
denial is only due to a specific condition mentioned in the notification and there is no
ambiguity on this aspect as the language of the notification is very clear. Further, on
plain reading of the Notification also, it is amply clear that Individual Shipping Bills have
to be considered if the procedure would have been followed under Para 2 i.e. by
claiming Rebate claim Customs on Shipping Bills or Bills of Export as per the schedule
of the Notification ibid. I absolutely agree with the argument of the adjudicating authority
that if the appellant would have sought the rebate from Customs, it would obviously have
been on the Individual Shipping bill and the rebate would have been sanctioned as per
the schedule in respect of that Shipping bill. There cannot be different practices for
sanctioning the rebate claim in Customs or Excise, when they are claimed under the
same Notification. Thus in the present case, individual Shipping Bills have been rightly
considered while arriving at the amount of Rebate to be sanctioned under Notification
8 V2(32)54/Ahd-I/2013
no. 41/2012-S.T., dated 29.6.2012.
11. The appellant has contended that they have claimed refund of Service
Tax in terms of Notification No.41/2012-S.T which is a beneficial legislation intended to
promote the exports by granting exemption to the Service Tax paid on various Services
utilized by an exporter during the course of exports of the goods and has to be construed
liberally and that substantive benefit should not be denied for any procedural infraction.
The Service Tax for which the rebate has been claimed by them are specified services
and the Service Tax has been paid by them. I find that the adjudicating authority has
sanctioned the rebate wherever all the conditions of the Notification has been fulfilled, as
such, the appellant cannot contend they have been denied the benefits of the said
Notification.
12. The appellants have also contended that as per para (c) of the
proviso to the said Notification, it is the amount of rebate claim which has to be
considered for applicability of procedure to be followed as per para 2 or 3 of the
said Notification. They have also stated that the Para 2 and 3 are mutually
exclusive meaning thereby that the exporter can claim rebate of the Service Tax
by following any of the procedure prescribed in the two paras and that they can
adopt whichever is beneficial to them. The Notification No. 41/2012-S.T.,dated
29.6.2012, does provide two options for claiming Rebate of Service Tax and the
exporter can chose whichever procedure is beneficial to them, however, they
cannot ignore the conditions laid down in the Notification for claiming the rebate. A
Notification is a law enacted by the Government of India and where the statute
provides a condition to be fulfilled for availing the benefit of a plarticular
Notification, the provision has to be complied with as a mandatory requirement of
law.
13. The Hon'ble Supreme Court in judgement, reported at 2011 (270) E.L.T.
465 (S.C.), while dismissing the appeal filed by M/s. Saraswati Sugar Mills has held as
under:
"Interpretation of exemption notification - Notification to be strictly construed - Conditions
for taking benefit under notification also to be strictly interpreted - Wordings of notification
when clear, plain language of notification be given effect to - Court cannot add or substitute
any word while construing notification either to grant or deny exemption. [para 7]
Interpretation of statutes - Rules - Rules are framed under statute and should be read as part of statute itself - Rules required to interpreted as intra vires to Act under which they
issued. [para 8] Components - Whether particular article is component of another - Test is to look at
article and consider it uses and whether its only use or its primary or ordinary use is as
component part of another article. [para 12]
Words and Phrases - Components - Common parlance meaning - Component part of
9 V2(32)54/Ahd-I/2013
an article is an integral part necessary to constitution of whole article and without which, the article will not be complete. [para 13]"
14. In view of the above discussion, I find that the adjudicating authority has
rightly rejected that the rebate claim to that extent where the condition prescribed in the
Notification No. 41/2012-S.T., dated 29.06.2012, has not been fulfilled. Hence I pass the
following order:
ORDER
15. In view of the above discussions and findings, I reject the appeal filed by
the appellant and uphold the impugned order.
921 ) 1 ( ANIL KUMAR )
COMMISSIONER (APPEALS-V), CENTRAL EXCISE, AHMEDABAD.
Date: /02/2014 ATTESTED Y
( . Vyas) Superintendent (Appeals-V) Central Excise, Ahmedabad
By Regd. Post A.D.
To M/s. Choksi Organics Pvt. Ltd., 604, Satkar Complex, B/h. Swagat Complex, C.G.Road, Ahmedabad
Copy to:
1. The Chief Commissioner, Central Excise, Ahmedabad Zone, Ahmedabad 2. The Commissioner of Central Excise, Ahmedabad-I, 3. The Deputy/Assistant Commissioner, Central Excise, Division-III, Ahmedabad-I. E., PA to Commissioner (Appeals-V) V.- Guard File.
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