Case Law Details

Case Name : Welspun Gujarat Stahl Rohren Ltd & 1 Vs Union of India & 4 (Gujarat High Court)
Appeal Number : Special Civil Application No. 12638 of 2008 With Special Civil Application No. 12639 of 2008
Date of Judgement/Order : 25/02/2010
Related Assessment Year :
Courts : All High Courts (3991) Gujarat High Court (332)

Assessee entitled to Rebate under Rule-18 of the Central Excise Rules, in respect of the export made during the period from 8.12.2006 to 17.9.2007

The company being an unit located in Kutch District is entitled to the benefit of Notification No.39/2001-CE dated 8.7.2001. At the time of removal of the goods from the factory for export, the Company paid duty of excise as is evident from the statutory invoices issued by the Company. The Company accordingly applied for rebate under Rule-18 of the said Rules which was granted to the Company until the respondent No. 3 issued Circular No. 209/11/2005 CX dated 8.12.2006, on the basis of which the respondent sought to deny rebate on the ground that the said exported goods are not considered to be duty paid since the said manufacturer was entitled to the excise duty refund under the said Notification.

By another Circular No. 209/11/2005 CX-6 dated 3.4.2007, the respondent No. 3 stated that for the purposes of rebate under Rule- 18, the goods cleared under area based exemption were not considered as duty paid. On 17.9.2007, the Central Government amended Rule-18 of the said Rules vide Notification No. 37/2007 CE (NT) dated 17.9.2007. By Section- 87 of Finance Act, 2008 rebate in respect of exports up to 8.12.2006 was granted.

The Court finds no merits or substance in any of the contentions raised by the respondents in justification of their stand to deny the benefit of rebate under Rule-18 of the Central Excise Rules, in respect of the export made during the period from 8.12.2006 to 17.9.2007. Both these petitions are, therefore, allowed to the above extent and the respondents are directed to grant the rebate forthwith as claimed.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 12638 of 2008

With

SPECIAL CIVIL APPLICATION No. 12639 of 2008

Welspun Gujarat Stahl Rohren Ltd. & 1 – Petitioner(s)

Versus

Union of India & 4 – Respondent(s)

Date of Judgement: 25/02/2010

J   U   D   G   M   E   N   T

(Per : MR. JUSTICE K.A.PUJ)

Rule. Mr. P. S. Champaneri, learned Assistant Solicitor General, waives service of rule in both these petitions.

Since the common issue is involved and since both the petitions are heard together the same are being disposed of by this common judgement.

Special Civil Application No.12638 of 2008 is filed by Welspun Gujarat Stahl Rohren Ltd., and its authorised person praying for declaration that Section- 87 of the Finance Act, 2008 read with the Fifth Schedule thereto is ultra virus Articles 14, 19(1)(g) and 265 of the Constitution of India to the extent the same provides for cut off date of 7.12.2006. The petitioners have also prayed for the direction to the respondents to forthwith allow and/or grant the rebate in respect of the exports made by the Company as detailed in Annexure-A to the petition.

By virtue of an amendment granted by this Court on 24.12.2009 one more prayer was made by the petitioner praying for quashing and setting aside the Circular dated 8.12.2006 and 3.4.2007 (Annexure-F and Annexure-G respectively to the petition).

Special Civil Application No. 12639 of 2008 is filed by Man Industries (India) Ltd., & Anr. making more or less similar prayers.

The facts are taken from Special Civil Application No. 12638 of 2008 for the sake of convenience and brevity.

It is the case of the petitioners that the petitioner No.1 Company is engaged in the manufacture and export of various items including Steel Arc Welded Pipes during the period from 8.12.2006 to 16.9.2007. The company being an unit located in Kutch District is entitled to the benefit of Notification No.39/2001-CE dated 8.7.2001. At the time of removal of the goods from the factory for export, the Company paid duty of excise as is evident from the statutory invoices issued by the Company. The Company accordingly applied for rebate under Rule-18 of the said Rules which was granted to the Company until the respondent No.3 issued Circular No.209/11/2005 CX dated 8.12.2006, on the basis of which the respondent sought to deny rebate on the ground that the said exported goods are not considered to be duty paid since the said manufacturer was entitled to the excise duty refund under the said Notification. By another Circular No. 209/11/2005 CX-6 dated 3.4.2007, the respondent No.3 stated that for the purposes of rebate under Rule-18, the goods cleared under area based exemption were not considered as duty paid. On 17.9.2007, the Central Government amended Rule-18 of the said Rules vide Notification No.37/2007 CE (NT) dated 17.9.2007. By Section-87 of Finance Act, 2008 rebate in respect of exports up to 8.12.2006 was granted. Accordingly, representations were made to the Government of India for granting rebate in respect of the period after 8.12.2006 until the amending Notification i.e. 16.9.2007. These representations have been rejected and rebate claims denied although the amending notification does not and cannot have retrospective effect in respect of the export made prior thereto. The petitioners, therefore, have approached this Court making above prayers in these petitions.

Heard Mr. Kamal Trivedi, learned Senior Advocate appearing with Mr. Vikram Nankani, Mr. Hardik Modh and Mr. Anuj Trivedi, for the petitioners and Mr. P.S. Champaneri, learned Assistant Solicitor General for the respondents. At the out set Mr. Trivedi has submitted that the petitioners do not press their challenge to the Section- 87 of the Finance Act, 2008 read with Schedule-V thereto. So far as petitioners challenge to the Circular dated 8.12.2006 and 3.4.2007 as well as their prayer for the direction to grant rebate in respect of exports made by them are concerned, Mr. Trivedi has submitted that the right to claim rebate is contained in Rule-18 of the said Rules, subject to the conditions mentioned therein including the condition that the said goods exported are duty paid. The grant of rebate under Rule- 18 is governed by Notification No. 19/2004 CE (NT) dated 6.9.2004 of which all the terms and conditions are satisfied by the Company. Upon exports of the said goods, vested right is accrued for grant of the rebate. Accordingly, the Company is eligible for rebate in respect of the exports of the said goods under Rule- 18 as is stood at the relevant time of exports thereof. The denial of rebate is, therefore, illegal and bad in law and contrary to the provisions of Rule-  18 of the Rules read with Notification No. 19/2004 CE (NT) dated 6.9.2004.

Mr. Trivedi further submitted that Rule-18 of the Central Excise Rules was amended on 17.9.2007 by the amending Notification. The amending Notification was issued by the Central Government in exercise of powers vested under Section-37 of the Central Excise Act. There is no power under Section- 37 of the said Act to amend Rule-18 with retrospective effect. The amending Notification, therefore, does not and cannot have retrospective effect and, therefore, the amended provisions of Rule- 18 shall not apply to rebate claim made in respect of exports of goods prior to 17.9.2007. He has, therefore, submitted that the petitioners are entitled to rebate in respect of export of the said goods under the unamended Rule- 18 as it stood prior to 17.9.2007.

Mr. Trivedi further submitted that Section-88 of the Finance Act, 2008 is a beneficial provision and an enabling provision which does not and cannot take away the rights of exporters like the Company for rebate in respect of exports made after 8.12.2006 in view of the fact that Rule-18 which is the statutory provision for grant of rebate read with Notification No. 19/2004 CE (NT) dated 6.9.2004 remained the same both before and after 8.12.2006 until 17.9.2007. He has, therefore, submitted that notwithstanding Section-88 of the Finance Act, 2008, the right vested in the Company to claim rebate in respect of export of the said goods after 8.12.2006 until 17.9.2007 continued and is valid. He has, therefore, submitted that the petitioners are entitled to the rebate as claimed by them in respect of exports mentioned in Annexure-A.

Mr. Trivedi further submitted that the benefit of Notification is an incentive granted by the Government of India to the manufacturer setting up units in the specified area. The object and purpose of area based notification was to encourage investments and industrialisation in the earthquake affected areas and are part of the larger package of incentive announced by the State of Gujarat. The exporter has nothing to do with the benefit granted under the said Notification. The said Notification is an area based Notification, whereby to encourage setting up of industry in a particular region, viz. Kutch. In the present case, the Central Government has extended tax benefit to the said manufacturer by way of subsidy or cash incentive, but in so far as the exporter like the petitioner Company is concerned, duty of excise has been paid for the said goods and the goods exported by the Company are duty paid. Once the said goods are cleared upon payment of duty of excise, the Company is lawfully entitled to the rebate of the duty of excise paid thereon upon exports. He has, therefore, submitted that the denial of rebate is arbitrary, unreasonable, irrational and violative of Articles 14, 19(1)(g) and 265 of the Constitution of India.

Mr. Trivedi has alternatively submitted that the cut off date in terms of Section-87 read with Schedule-V to the Finance Act, 2008 is artificial. There is no significance of December, 2006 except for the fact that the respondent No. 3 issued the Circular on 8.12.2006. This is more so when the said Circular dated 8.12.2006 has no relation whatsoever to the provisions of Rule-18. As long as provisions of Rule-18 continue to be the same, although before and after 8.12.2006, all goods which have been removed under the area based Notification are not justified and have no nexus with the object and purpose of the amendment to Rule-18 on 17.9.2007. He has, therefore, submitted that there is no justification in denying the rebate claim of the petitioners.

Mr. Trivedi further submitted that it is settled law that what cannot be done directly, cannot be done indirectly. By providing for an artificial cut off date of 7.12.2006, retrospective effect is sought to be given to to the amendment to Rule- 18 vide Notification No. 37/07-CE(NT) when in law, the same has and cannot have any retrospective effect. He further submitted that when a statute provides for a language to be done in a particular manner, the same cannot be done in any other manner. Any amendment to the said Rules can be made only by Notification in the official gadget. The two circulars do not have the effect of amending rule since Rule- 18 was amended on 17.9.2007 and the Notification amending the same does not have the retrospective effect, rebate on account of export of the said goods between 8.12.2006 and 17.9.2007 cannot be denied to the Company.

Mr. Trivedi further submitted that under Rule-12A of the Cenvat Credit Rules, 2002 corresponding to Rule-12 of the Cenvat Credit Rules, 2004 goods removed by a manufacturer, inter alia availing the benefit of the said Notification are regarded as duty paid goods and the buyer is eligible for Cenvat Credit of such duty paid by such manufacturer when the said goods are used in India for further manufacture of final products. He has, therefore, submitted that if the said goods manufactured by the manufacturer are considered to be duty paid for the purposes of Cenvat Credit, different and discriminatory treatment cannot be made in respect of the same duty paid goods when exported. He has also submitted that the denial of rebate to the Company is discriminatory inasmuch as no distinction drawn between a domestic manufacturer and exporter in respect of the same goods cleared on the same terms. Such a classification is not based on intelligible differentia. The domestic manufacturer as well as the exporters are similarly situated in relation to the said goods removed under the said Notification. He has, therefore, submitted that the impugned action on the part of the respondents in denying rebate to the petitioners in respect of the said goods exported during the said period is violative of Article- 14 of the Constitution of India.

In support of his submissions Mr. Trivedi relied on the decision of Apex Court in the case of

(1) Sandur Micro Circuits Ltd., Vs. CCE, reported in 2008 (229) ELT 641 (SC)

(2) Marck Parenterals India Ltd. Vs. Union of India and others, reported in 2009 (93) RLT 245 (Guj.)

(3) Inter Continental (India) Vs. Union of India, reported in 2003 (154) ELT 37 (Guj.).

Mr. P. S. Champaneri, learned Assistant Solicitor General, appearing for the respondents, on the other hand has submitted that the petitioners have already availed cash refund under a Notification No. 39 of huge amount. The petitioners have filed this petition for availing of the double benefit by way of rebate under Rule- 18 in respect of the refund already availed. He has, therefore, submitted that this petition cannot be considered to be bonafide litigation and hence the same deserves to be dismissed. He has further submitted that Rule-18 of the Central Excise Rule 2002 provides for grant of rebate of duty paid on exported goods as per procedure and terms and conditions prescribed under the Notification No. 19/2004-C-E (NT) dated 6.9.2004. He has further submitted that the Notification No. 39/2001-CE dated 31.7.2001 issued under the provisions of Section 5A(1) of the Central Excise Act, 1944 provides for the exemptions from excise duty only to the extent it is in excess of the amount paid out to Cenvat Credit. The said exemption, Notification No. 39/2001-CE has been operationalized by way of paying the full amount of duty at the first instance and, thereafter, granting of refund of duty paid in cash. The provisions of Rule-18 operate in respect of the cases of duty paid on exported goods in conformity with the Notification No. 19 of 2004 issued in exercise of the power under Rule- 18. The question had then arisen whether the said payment of duty at the first stage which is subsequently refunded can be considered as a duty paid and accordingly the issue was referred to the Ministry of Law and Justice and the Ministry of Law and Justice had opined that the term ‘a duty paid’ as used in the provisions of Rule-18 does not include that portion of the duty which is subsequently refunded to the manufacturer A further opinion was rendered to the effect that the amount so refunded to the manufacturer is to be treated as an exemption and rebate of the said amount cannot be paid and the said decision has been clarified by the Central Board of Excise & Custom’s letter dated 8.12.2006, issued in form “F” on 8.12.2006. He has further submitted that consequent upon the same, the Notification No. 37/2007 dated 17.9.2007 came to be issued inserting Clause “h” in para-2 of the Notification No. 19/2004-CE(NT) dated 6.9.2004. He has, therefore, submitted that by virtue of this Notification, if the benefit of the area based Notification has been availed of, the benefit of rebate under the Notification under Rule-18 of the Central Excise Rules cannot be availed of. He has, therefore, submitted that such excisable goods which are cleared from the factory on or after 17.9.2007 will be permitted to be exported only under Bond and not under claim of rebate under the Notification No. 14/2004-CE(NT). However, such manufacturer can avail the rebate of duty paid on inputs used in manufacture of goods exported in terms of Notification No. 21/2004-CE(NT) dated 6.9.2004.

 In the above background of the matter, Mr. Champaneri has submitted that the provisions of Section-88 of Finance Act, 2008 as enacted by the Parliament has provided that the provisions of Rule- 18 as published in Official Gazette in exercise of the power under Section- 37 of the Central Excise Act shall stand amended and shall be deemed to have been amended retrospectively in the manner as specified in Col. No. 2 of the Sixth Schedule on and from the corresponding date specified in Col. No. 3 of that schedule against the rule specified in Col. No. 1 of that Schedule. These facts and situation clearly show that the amendment in the provisions of Rule- 18 of Central Excise Rules, 2002 is not by an Executive Act, but by the Legislative Act of the Parliament and hence the application and/ or operation of the provisions of Rule- 18 of Central Excise Rules, 2002 has been restricted only up to a period enumerated in Col. No. 3 of Sixth Schedule.

Mr.Champaneri further submitted that the rebate of duty paid on excisable goods cleared from a factory for export shall be admissible for that portion of duty for which refund has been granted in terms of the Notification No. 39/2001-CE dated 31.7.2001 by amending the Rule-18 of the Central Excise Rule, 2002 vide Section-88 of the Finance Act, 2008. The period of effect of amendment in the said Rules is from 1.3.2002 to 7.12.2006. He has, therefore, submitted that the petitioners have availed the exemption of duty paid from cash/PLA under a Notification No. 39/2001-CE dated 31.7.2001 and, therefore, the subsequent and/ or the double refund of the same amount cannot be granted as a rebate of duty. He has further submitted that Cenvat Credit and the rebate and duty has been provided respectively under the provisions of Cenvat Credit Rules, 2004 and the Central Excise Rules, 2002 respectively and the benefit is available respectively as per the provisions of relevant Rules. He has, therefore, submitted that there is no substance in the prayer made by the petitioners in the present petitions and hence both the petitions deserve to be dismissed.

Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of relevant rules, notifications etc., the Court is of the view that the petitioners could not have been denied the benefit of rebates of duty paid by them for the exports made during the period from 8.12.2006 to 17.9.2007. The main ground for denial of benefit of rebate under Rule- 18 of the Central Excise Rules is that once the benefit of the area based notification has been availed of, the benefit of rebate under the notification under Rule- 18 of the Central Excise Rules cannot be availed of. To appreciate this contention raised on behalf of the revenue, it is necessary to have a close look at the Notification No. 39/2001-CE dated 8.7.2001, Relevant extract from this Notification reads as under:-

“Exemption to excisable goods (except those specified in Annexure) cleared from units in Kutch (Gujarat).-

In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section- 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) other than goods specified in the Annexure appended to this notification and cleared from a unit located in Kutch district of Gujarat from so much of the duty of excise or the additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2001.”

Since this notification being an area based notification and whole object or purpose thereof was to encourage investment and industrialisation in the earthquake affected areas, the petitioner No. 1 Company being an unit located in Kutch District is entitled to the benefit of this Notification. Once having availed the benefit of refund under this notification the petitioners claimed rebate of the duty paid on export of goods from the factory premises. This Court has to now consider whether this would amount to double benefit by way of claiming rebate under Rule-18 of Central Excise Rules, 2002. Rule- 18 reads as under :-

“Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfilment of such procedure, as may be specified in the notification.”

The grant of rebate under Rule- 18 was governed by Notification No. 19/2004-CE(NT) dated 6.9.2004 and the petitioner No. 1 Company, as a matter of fact was getting rebate up to 7.12.2006 of duty paid on all exports made. However, a deviation was made for the first time on 8.12.2006. The Central Board of Excise and Customs issued a Circular dated 8.12.2006, which reads as under:-

“The issue relating to the amount of duty that is to be rebated under Rule- 18, in respect of excisable goods manufactured and cleared availing the area based exemption schemes presently available for North East ( Vide Not. Nos.32/99-CE and 33/99-CE both dated 8.7.1999), Jammu & Kashmir (vide No. Nos. 56/2002 & 57/2002-CE both dated 14.11.2002), Kutch (Not No. 39/2001 CE dated 31.7.2001) and Sikkim (vide Not.No. 56/2003 dated 25.6.2003) is under examination of the Board.

2. The issue is briefly elucidated. Rule-18 of the Central Excise Rules, 2002, provides for grant of rebate of duty paid on exported goods. In terms of the notifications as mentioned above issued under Section 5A(1) of the Central Excise Act, 1944, exemption from excise duty is available only to the extent it is in excess of the amount paid out of CENVAT credit. However the said exemption has been ope-rationalised by way of paying the full amount of duty first, and thereafter granting of refund of duty paid in cash. A doubt has arisen as to whether the said payment of duty at first stage, which is subsequently refunded, can be considered as ‘duty paid’ in terms of Rule-18 or not. The matter was referred to the Law Ministry, who have opined that the term ‘duty paid’ used in Rule-18 does not include that portion of duty, which is subsequently refunded to the manufacturer. They have further opined that the amount so refunded to the manufacturer is to be treated as an exemption and rebate of the said amount cannot be paid.”

 By virtue of this Circular, the Board has made an attempt to nullify the effect of Notification No. 19/2004-CE(NT) dated 6.9.2004, which is not permissible in view of the decision of Apex Court in Sandur Micro Circuits Ltd., (Supra), wherein it is held as under;

“The issue relating to effectiveness of a Circular contrary to a Notification statutorily issued has been examined by this Court in several cases. A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words it was held that by issuing a Circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed.”

To overcome the above difficulty, the Government of India issued Notification No. 37/2007-CE(NT) dated 17.9.2007, which reads as under:-

“In exercise of the powers conferred by Rule- 18 of the Central Excise Rules, 2002, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue No. 19/2004-CE(NT) dated the 6th September, 2004 published in the gazette of India, Part- II, Section- 3, Sub-Section (i) Extraordinary, No. 570(E), dated the 6th September, 2004.

In the said notification, in paragraph-2, after clause (g), the following clause, shall be inserted, namely :-

(h) that in case of export of goods which are manufactured by a manufacturer availing the notifications of the Government of India in the Ministry of Finance (Department of Revenue) No.32/99-Central Excise, dated in 8th July, 1999 (G.S.R. 509(E), dated the 8th July, 1999) or No.33/99-Central Excise, dated the 8th July, 1999 (G.S.R. 509(E) dated the 8th July, 1999) or No.39/2001-Central Excise, dated the 31st July, 2001 (G.S.R. 565(E) dated the 31st July, 2001) or notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 56/2002-Central Excise dated the 14th November, 2002 (G.S.R. 764(E) dated 14the November, 2002) or No.57/2002-Central Excise dated the 14th November, 2002 (GSR 765 (E) dated the 14th November, 2002) or notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 56/2003-Central Excise dated the 26th June, 2003 (G.S.R. 513 (E) dated the 25th June, 2003) or 71/2003-Central Excise, dated the 9th September, 2003 (G.S.R. 717(E) dated the 9th September, 2003) or No.20/2007-Central Excise, dated the 25th April, 2007 (G.S.R 307(E) dated the 25th April, 2007) the rebate shall not be admissible under this notification.”

By inserting Clause (h) in the Notification No. 19/2004-CE(NT) dated 6.9.2004, an attempt was made to give retrospective effect to the Notification No. 37/2007-CE(NT) dated 17.9.2007. However, there is nothing in this Notification to apply it retrospectively and even otherwise, it is not legally permissible.

One more attempt was made in Finance Act, 2007. Section-88 of the Act reads as under:-

“88. Amendment of Central Excise Rules, 2002,- (1) in the Central Excise Rules, 2002, made by the Central Government in exercise of the powers conferred by Section-37 of the Central Excise Act, rule 018 thereof as published in the Official Gazette vide notification of the government of India in the Ministry of Finance (Department of Revenue), number G.S.R. 143(E), dated the 1st March, 2002 shall stand amended and shall be deemed to have been amended retrospectively in the manner specified in column (2) of the Sixth Schedule on and from the corresponding date specified in column (3) of the Schedule on and from the corresponding date specified in column (3) of that Schedule against the rule specified in column (1) of that Schedule.”

The Sixth Schedule referred to in Section-88 is as under :-

THE SIXTH SCHEDULE

(See Section-88)

Provisions of the Central Excise Rules, 2002 to be amended Amendment Period of effect of amendment

(1)

(2)

(3)

Rule 18 of the Central Excise Rules, 2002 as published vide notification number G.S.R. 43(E), dated the 1st March, 2002 In the Central Excise Rules, 2002, in Rule-18, before the Explanation, the following proviso shall be inserted, namely:- “Provided that the rebate of duty paid on excisable goods cleared from factory for export shall also be admissible for that portion of duty paid for which the refund has been granted in terms of the notifications of the Government of India in the Ministry of Finance (Department of Revenue) number G.S.R. 508(E), dated the 8th July, 1999 132/99-Central Excise, dated the 8th July, 1999) or number G.S.R. 509(E) dated 509(E) dated the 8th July, 1999 133/99-Central Excise, dated the 8th July, 1999), number G.S.R. 565(E) dated the 31st July, 2001 139/2001-Central Excise, dated the 31st July, 2001), or notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) number G.S.R 764(E) dated the 14th November, 2002 (56/2002-central Excise, dated the 14th November, 2002), number G.S.R. 765(E) dated the 14th November, 2002 (57/2002-Central Excise, dated in the 14th November, 2002), or notification of the government of India in the Ministry of Finance (Department of Revenue) number G.S.R. 513(E), dated the 25th June, 2003 (56/2003-Central Excise, dated the 25th June, 2003), number G.S.R. 717(E), dated the 9th September, 2003 (71/2003-Central Excise, dated the 9th September, 2003).” 1st day of March, 2002 to 7th day of December, 2006 (both days inclusive).

Based on this amendment, it was strongly urged before the Court that the application and/or operation of the provisions of Rule-18 of Central Excise Rules, 2002 has been restricted only up to a period enumerated in Col. No. 3 of Sixth Schedule, i.e. 1st day of March, 2002 to 7th day of December, 2006. Despite this amendment brought in by Section-88 of the Finance Act, 2008, the right vested in the petitioner No. 1 Company to claim rebate in respect of export of goods after 8.12.2006 until 17.9.2007 continued and its validity or enforce ability could not be affected.

Taking overall view of the matter, the Court finds no merits or substance in any of the contentions raised by the respondents in justification of their stand to deny the benefit of rebate under Rule- 18 of the Central Excise Rules, in respect of the export made during the period from 8.12.2006 to 17.9.2007. Both these petitions are, therefore, allowed to the above extent and the respondents are directed to grant the rebate forthwith as claimed.

Rule made absolute to the above extent without any order as to costs.

(K. A. PUJ, J.) (RAJESJH. SHUKLA, J.)

On pronouncement of the judgement Mr. P. S. Champaneri, learned Assistant Solicitor General prays for stay against the implementation of the judgement and order. Mr. Hardik Modh, learned advocate appearing for the petitioner objects to grant of stay.

Having regard to the facts and circumstances of the case and since the respondents want to approach the higher forum, stay is granted for the period of four weeks from today.

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