TMI Blog2014 (11) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... ty could not have held that there is no compliance with the condition. The Revisional Authority has further observed that the Circular issued by the Central Board of Excise and Customs dated 30 January 1997 has held that this condition can be relaxed if the goods exported are identifiable and co-relatable with the goods cleared from the factory of manufacturer. The Revenue has not produced before us any document, which superseded the Notification dated 6 September 2004 or modifies or amends the same in any manner. Further there is much substance in the argument of Mr.Patil that earlier identical finding and which is to be found in the order of the Assistant Commissioner, Central Excise, Chembur-I Dn.Mumbai-II dated 3 February 2006, at page 63 of the Paper Book, was set aside by the Revisional Authority. The Revisional Authority has in its order passed in favour of the Petitioner before us has held that the refund claim was rejected on procedural infractions, which are condonable. In these circumstances and when there is an identical view taken in the case of M/s.BPCL, we are unable to sustain the impugned order. rebate claim of the Petitioner is granted by quashing and setting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ATF which was supplied from NITC-AFS. The claim was filed in terms of Rule 18 of the Central Excise Rules, 2002. All the relevant documents were annexed to Claim Application dated 25 August 2005. There were certain queries raised by Respondent No.3 on this application for refund and those were forming part of Query Memo dated 30 September 2005, copy of which is at Annexure-G to the Writ Petition. The factual position was clarified by the Petitioner by replies at Annexures- H, I J to this Writ Petition. 5. The Petitioner essentially pointed out that they have complied with the mandatory as also the procedural requirements under the Notification dated 6 September 2004. Therefore, the refund should be granted. 6. However, that application was rejected on 3 February 2006. Copy of this order is at Annexure-L to the Writ Petition. An appeal was filed against this order before the Commissioner of Central Excise (Appeals), and which appeal was dismissed on 21 June 2006. 7. In the order dated 21 June 2006, copy of which is at Annexure-N to the Writ Petition, it has been categorically observed by the Authority namely the Commissioner (Appeals) that the Petitioner complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity is sustainable and I do not want to interfere with the same. In view of above, I uphold the impugned order and reject the appeal. 9. Aggrieved by this order of rejection of appeal, a Revision Application was filed before the Revisional Authority namely the Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue). He proceeded to reject the same on 11 November 2009 and copy of this order is at Annexure-P to the Writ Petition. From that order as well the Counsel relies on the factual position and which can be easily noted. The relevant findings are to be found in paras 7 8 of the impugned order, they read as under:- 7. From the perusal of records, Govt. observes that the applicant has supplied the ATF to aircrafts on foreign run by transferring the duty paid product to the Aviation Fuelling Station (AFS) Mumbai-Delhi which has been registered as a warehouse of Excisable goods. As per condition of para 2(a) of the Notification No.19/2004-CE(NT) dated 6-9-2004, the goods have to be exported directly from the factory or warehouse except as otherwise permitted by the Central Board of Excise and Customs by general or special order. CBEC has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the present case, the Notification has been misread and deliberately to deny the claim. 11. Mr.Rao, learned Counsel appearing on behalf of the Revenue submits that in the present case, the finding of fact, in para 8 of the order under challenge, cannot be said to be perverse. It is not vitiated by any error of law apparent on the face of record. It is also not misreading or misinterpreting any conditions. Mr.Rao emphasizes that ATF was not supplied to foreign run aircrafts from the factory or the warehouse. Further the Petitioner failed to establish the co-relation with the goods cleared from the factory to those supplied to foreign run aircrafts. In such circumstances, Mr.Rao would submit that the Petition should be dismissed. Alternately, he submits that for verification and scrutiny of the records, this Court should partly allow the Writ Petition and remand the matter back to the Revisional Authority, who will pass a fresh order after hearing the Petitioner. 12. With the assistance of Mr.Patil and Mr.Rao, we have perused the Petition and all the relevant Annexures including the impugned order. 13. On perusal of these documents and undisputed factual position emerg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd contradictory. If the argument of the Petitioner is that the co-relation has been established and which has been considered in para 8, then, there was no necessity of rejecting it in the teeth of earlier clear observations and findings that perusal of records shows that fuel was supplied to aircrafts on foreign run by transferring the duty paid product to AFS, Mumbai-Delhi. If that is registered as a warehouse of excisable goods, then, there is absolutely no necessity of looking into any other compliance. Particularly, when the refund application has been rejected by the Authority concerned and equally by the Appellate Authority by cryptic conclusion and as reproduced above. In the Appellate order, there is a clear finding that the Petitioner has complied with all other conditions, save and except para 2(a) of the Notification. 16. In the light of this, we are unable to appreciate the argument of the Revenue and to the contrary. The Revenue has not produced before us any document, which superseded the Notification dated 6 September 2004 or modifies or amends the same in any manner. Further there is much substance in the argument of Mr.Patil that earlier identical finding and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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