TMI Blog2013 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... 120-123/2012-CX - Dated:- 7-2-2012 - Shri D.P. Singh, J. REPRESENTED BY : Shri T. Chandran Nair, Advocate, for the Assessee. Shri Vikas Nair, Deputy Commissioner, for the Department. [Order]. - These Revision Applications have initially been filed by M/s. Indian Oil Corporation Limited, Western Region, Mumbai against the Orders-in-Appeal Nos. BR/192 to 195/M-IV/05, dated 20-12-2005 passed by the Commissioner of Central Excise (Appeals), Mumbai-I. 2. Brief facts of the cases are that the appellants have a bonded warehouse (Aviation Fuel Station) at Sahar, Mumbai. The Aviation Turbine Fuel (ATF) falling under Chapter 27 of CETA, 1985 is stored at the warehouse by the appellant and supplied to aircrafts operating on domestic run as well as foreign run. During the period, the appellants cleared ATF from time to time to aircrafts on run to Kathmandu (Nepal) after paying Central Excise duty @ Rs. 24.94 per KL being the unrebatable portion of duty envisaged under Notification No. 46/94-C.E., (N.T.), dated 22-9-1994 and Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 12 of erstwhile Central Excise Rules, 1944 and Rule 18 of Central Excise (No. 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under claim of rebate of excise duty had been extended in respect of export of excisable goods to the countries like (1) Afghanistan (2) Nepal (3) Tibet and (4) Bhutan. (ii) Chapter 8, Part 3, Para 2.2 of C.B.E. C. s Excise Manual of Supplementary Instructions for New Excise Procedure as on 1-9-2001 has clarified that the Government has decided to extend the facility of rebate to all countries, without any restrictions the countries having land frontier. The supplies of ATF and other listed items (supplies to aircraft going to Nepal, Afghanistan and Bhutan) will be allowed in the same manner as it is allowed to supplies of ATF and other listed items to aircraft going to other foreign countries, including the payment or remittances. (iii) Govt. of India, in IOCL s (appellants) own case, vide Order No. 52- 58/1999, dated 30-6-1999 had held that rebate for Afghanistan bound Flight is admissible under Notification No. 46/94-C.E. (N.T.), although Afghanistan was excluded under Clause (i) in the said Notification, (iv) Collector (Appeals), vide Order-in-Appeal No. 290/Cal.II/1987, dated 15-7-1987 had allowed rebate on ATF supplied to Nepal bound flights based on executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Tibet and Bhutan. On reading of the contents of this instruction, as reproduced in Revision Application Order No. 52-58/1999, dated 30-6-1999 of the Govt. of India, it appears that during the material period i.e. 1949-1950, rebate of duty was not admissible to any goods exported to a foreign country having common land frontier with India, except Pakistan and Burma. However, notifications prevalent during the period of dispute in the present appeals clearly differentiate mineral oil products and goods other than mineral oil products. Procedures have also been prescribed by Notification for payment of rebate of excise duty to His Majesty s Govt. of Nepal. Thereafter, Notification No. 203/67-C.E., dated 9-9-1967 came to be issued. The Ministry of Finance issued letter F. No. 481/7/1975-Cus.VII, dated 7-2-1975 enclosing copy of Ministry of Petroleum and Chemicals letter No. 35022(21)/1974- FSP(PES), dated 3-2-1975. In this letter, it has been requested that the authorities concerned at Delhi and Calcutta may be advised to allow re-fuelling of Royal Nepal Air Corpn. aircrafts just like any other international airline. The issue covered in this letter relates to supply of fuel in bond. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the judgment in the case of Suchitra Components Ltd. reported in 2007 (208) E.L.T. 321 (S.C.). 5.2 The said C.B.E. C. instructions would be binding on the Dept. based on the following judgments : (a) 2002 (139) E.L.T. 3 (S.C.) - Dhiren Chemicals (b) 2002 (143) E.L.T. 19 (S.C.) - Dhiren Chemicals (c) 2004 (165) E.L.T. 257 (S.C.) - Indian Oil Corporation 5.3 Government of India, in IOCL s own case, vide Order No. 52-58/1999, dated 30-6-1999 (F. No. 195/121 to 127/1998-RA), held that rebate for Afghanistan bound flights is admissible under Notification No. 46/94-C.E. (N.T.), although Afghanistan was excluded under Clause (i) in the said Notification. The same would directly cover the present case also. That following the said Order of Govt. of India, the Hon ble Tribunal, in IOCL s own case reported in 2007 (220) E.L.T. 324 (T), has allowed the rebate on the supplies made to Nepal bound aircrafts. Similarly Commissioner (Appeals), vide Order-in-Appeal No. 290/Cal II/B7, dated 15-7-1987 in IOCL s own case had held that supplies of ATF to Royal Nepal Air Corporation s flights are eligible for rebate; 5.4 Since the said Govt. of India s Order Nos. 52-58/1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of the administrative instruction has not been, as it could not be, called into question on behalf of the Government. In this view of the matter, we are of the view that it would be necessary to set aside the impugned order of the revisional authority and to remit the proceedings back for a fresh determination. To facilitate this exercise the impugned order dated 30 April, 2009 is set aside and the proceedings are remitted back to the revisional authority for fresh consideration. The Petition is disposed of No costs. 8. Accordingly, this authority proceeded to take up these cases for fresh consideration and the matter was listed for personal hearing on 19-1-2012. Shri T. Chandran Nair, Advocate attended the hearing on behalf of the applicant and reiterated the grounds of revision application. Shri Vikas Nair, Deputy Commissioner attended the hearing on behalf of the respondent and pleaded for upholding of impugned orders-in-original and orders-in-appeal. 9. Government after due re-consideration of all the records/proceedings as held so far finds itself duty bound for following the principals of judicial discipline and complying with the directions and order dated 26- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/13-Cx/1949, dated 18-2-1950 read as follows : As the conditions prescribed under the notification issued under Rule 12 of the Central Excise Manual now stand, rebate of duty is statutorily not admissible on exports whether by land or by sea to a foreign territory having common land frontier with India except Pakistan and Burma. The countries to which such rebate is not so admissible are : 1. Afghanistan 2. Nepal 3. Tibet 4. Bhutan However, order executive instructions, the concession of export under claim for rebate of duty has been extended in respect of export of excisable goods to the above mentioned countries. A harmonious reading of the above notification and the executive instructions issued would reveal that through statutorily rebate of duty is not admissible on exports of mineral oil in a country or territory with common land frontier with India the said rebate was allowed under executive instructions. The Commissioner of Central Excise, Delhi vide C. No. 111-11(1)PR/98/130 dated 4-3-1999 has also reported that rebate of duty on export of ATF is paid, as per prescribed rates, for all international flights including flights to Nepal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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