TMI Blog2012 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... - - 1225-1226/2011-CX - Dated:- 14-9-2011 - Shri D.P. Singh, J. [Order]. These revision applications are filed by Commissioner of Central Excise, Jaipur-II as mentioned at column no. 2 of the table against the orders-in-appeal No. as mentioned at column no. 4 of the table passed by Commissioner of Central Excise, (Appeals). Sl. No. Revision Application No. Name of Respondent Order-in-Appeal No. and Date (1) (2) (3) (4) 1. 198/96/09-RA M/s. National Tools (Exports) 156-186(DK) CE/JPR-II/09 dated 6-3-2009 2. 198/103/09-RA M/s. Dinesh Enterprises (U-II) M/s. Kansara Modler Ltd., M/s. Alcobex Metals Ltd., M/s. Iscon Surgical (U-II) M/s. Rajasthan Gum Pvt. Ltd. 259-265(DK)/CE/JPR-II/2009 dated 26-3-2009 2. Brief facts of the case are that Respondents who filed rebate claims in respect of Central Excise duty paid on goods exported vide various AREs-1 in terms of Rule 18 of Central Excise Rules, 2002. Adjudicating authority initially sanctioned the claims. 3. Applicant Department observes that the adjudicating authority has erred in san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is seen that in the case of export the place of removal is factory gate only and thus the expenses incurred after removal of goods from the factory gate do not constitute part of assessable value and such expenses are required to be deducted from the FOB value for the purpose of arriving at the assessable value under Section 4 for the purpose of rebate therefore finding of Commissioner (Appeals) that in case of export, the place of removal is not factory gate but the place where the delivery of the consignment is given to the buyer and properly in the form of goods is passed on to the buyer are not correct. 4.2 As per Rule 2(1) and 3 of the Cenvat Credit Rules, 2004, Cenvat Credit has been allowed upto the place of removal. Following the same, Hon ble Tribunal in the case of Nirma Ltd. v. C.C.E., Bhavnagar reported in 2009 (13) S.T.R. 64 (Tri- Ahmd.) held that CHA service in respect of export are not having nexus with manufacture and clearance from factory and such services rendered in port are not covered under input service. Findings of the Tribunal also support the view that place of removal is factory gate in case of export. 4.3 Since Cenvat Credit is not allowed on serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Bangalore [ 2007 (215) E.L.T. 515 (Tri. Bang)]. They have also placed reliance on some other case laws. 6.2 Rebate sanctioning authority should not examine the correctness of assessment but should examine only the admissibility of rebate of duty paid on goods covered by a claim. Respondents placed reliance on some case laws in favour of their submission. 6.3 The respondents also placed reliance upon many judgments in favour of their argument that outward transportation, C F Agent and CHA services are to be included in value for the purpose of sanctioning rebate. 7. Government has carefully gone through the relevant case records and peruse the impugned Order-in-Original and Order-in-Appeal. 8. On perusal of records, Government notes that in this case adjudicating authority had sanctioned rebate claims in respect of duty paid on exported goods. Department filed appeal before Commissioner (Appeal) on the grounds that rebate in cash was required to be sanctioned of duty paid to the extent of assessable value arrived at after deducting the amount of all post removal expenditures incurred from factory gate onwards from FOB value. However Commissioner (Appeal) rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation from the place of removal upto the place of delivery of such excisable goods. Explanation 1. - Cost of transportation includes - (i) The actual cost of transportation; and (ii) In case where freight is averaged, the cost of transportation calculated in accordance with generally accepted principles of costing. Explanation 2. - For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purpose of determining the value of the excisable goods. 9.5 Government observes that from the perusal of above provisions it is clear that the place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of word any other place read with definition of Sale , cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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