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TMI Blog2012 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... y sanctioned the claims. 3. Applicant Department observes that the adjudicating authority has erred in sanctioning rebate amount in cash without ascertaining the correct value under Section 4 of the Central Excise Act, 1944 and without deducting from FOB value of all post removal expenses incurred factory gate onwards. After review of the said Orders-in-Original, the Applicant Department filed before Commissioner (Appeals). Commissioner (Appeals) vide impugned Orders-in-Appeal rejected the departmental appeals and held that value for the purpose of export shall be the transaction value and should conform to Section 4 or Section 4A, as the case may be of the Central Excise Act, 1944; that rejected the Departmental contention that Section 4 value in case of export shall be FOB value less post removal expenses from factory gate to port of export; 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 property in the form of goods is passed on to the buyer. The Commissioner (Appeals) in effect held that in case of export, port is the place of removal. 4. Being aggrieved by the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 services incurred factory gate onward, Government of India has issued Notification No. 41/2007-S.T., dated 6-10-2007, which allows refund of service tax paid on such post removal services like services provided for transport of goods from factory to ICD, inland container depot to the port of export etc. which also make it evident that in the case of export the place of removal is factory gate only. 4.4 The respondents were required to pay duty on export clearance only on the transaction value and were accordingly eligible of rebate in cash only to that extent and the additional duty paid by them can be refunded only as Cenvat Credit from where it was paid. Government of India vide Order No. 589-593 dated 29-11-2005 in the case of M/s. National Tools (Exports), Jodhpur and Order No. 536-582/2005 dated 24-11-2005 in case of M/s. Banswara Syntex Ltd., Banswara have allowed the Department Revision Application, which also makes it evident that the place of removal in export cases is factory gate. 4.5 Sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned 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) rejected the appeal holding that place of removal is not factory gate but the place where the delivery of consignment is given to buyer at the port of loading and therefore expenses upto port of export were allowed. Now department has challenged the impugned orders-in-appeal on the grounds stated in para 4 above. 9. Government observes that the relevant statutory provisions for determination of value of excisable goods are as under :- 9.1 As per Section 4(1)(a) of Central Excise Act, 1944 where duty of excise is chargeable on any excisable goods with reference to their value, then on each removal of said goods such value shall.- (a) In a case where the goods are sold by the assessee, for delivery at time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value. (b) In other case, including the cases where the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable 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 India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it can not be beyond the port of loading of the export goods. Under such circumstances, the place of removal is the port of export where sale takes place. 9.6 Further, C.B.E.C. vide it (Section) 37B order 59/1/2003-CX., dated 3-3-2003 has clarified as under :- "7. 'Assessable value' is to be determined at the "place of removal". Prior to 1-7-2000, "Place of removal" [Section 4(4)(b), sub-clauses (i), (ii) and (iii)], was the factory gate, warehouse or the depot or any other premises from where the goods were to be sold. Though the definition of "place of removal" was amended with effec ..... 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