TMI Blog2014 (11) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Remission of duty is allowable in such an exceptional situation in terms of Rule 21 of Central Excise Rules 2002. Clause (iii) in Section 4 (3) (C) for ‘Place of removal’ was inserted w.e.f. 14.05.2003 vide section 136 of the Finance Act 2003. Goods cleared for export under Bond which were destroyed before the same could be exported, can be treated as having been destroyed before removal only. This would be the fair interpretation of the Rule 21 of the Central Excise rule 2002. Thus, primary condition of eligibility of Remission of duty on the destroyed goods is fulfilled as required u/r 21 of Excise Rules 2002. Appellant is eligible for the Remission of duty in respect of goods for export under Bond which were destroyed before the same could be exported. in cases where goods removed from factory for export under Bond are destroyed before export, due to unavoidable accident, then in such situation the goods destroyed are to be treated as having been destroyed before removal in terms of Rule 21 of Central Excise Rules 2002. - Decided in favour of assessee. - Appeal No.E/371/2009 - Order No.M/14401/2014 - Dated:- 4-9-2014 - MRS. ARCHANA WADHWA, MR. M.V. RAVINDRAN AND MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to provision of Rule 21 of Central Excise Rules 2002 for consideration to allow remission of duty, which is also reproduced hereunder :- RULE 21. Remission of duty. - Where it is shown to the satisfaction of the Commissioner that goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal, he may remit the duty payable on such goods, subject to such conditions as may be imposed by him by order in writing: 5. Shri P.P. Jadeja, ld.Consultant also submitted written synopsis of the case and briefly argued the matter on the following points:- (i) The excise duty levied is on manufacture and collected on removal on Adv basis i.e. on percentage of value of the goods in question. Therefore, in case of transaction of sale, the assessable value of the goods would be the value of goods at the place of removal of goods in the hands of appellant. (ii) Sale as defined u/s 2(h) of the Central Excise Act 1944 means transfer of possession of goods from one person to another person . Thus, as long as the possession of the goods is not transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) in Section 4(3)(C) for Place of removal will be applicable in this case under consideration. When such provision was not inserted in statute, the Hon ble CESTAT has given such decision, but those decisions are not applicable in the facts of this case pertaining to period after such amendment made w.e.f. 14.05.2003. (vii) He also submitted that Place of Removal has been held to be the load port in cases of exports in the following CESTAT decisions :- a) CCE Hyderabad Vs Pokarna Ltd 2013 (292) E.L.T. 316 (Tri-Bang) b) Oriental Containers Ltd Vs CCE Thane 2012 (28) S.T.R. 397 (Tri-Mum.) c) CCE Vs Adani Pharmachem P. Ltd 2008 (12) S.T.R. 593 (Tri- Ahmd) d) Bal Pharma Ltd Vs CCE 2014 (34) S.T.R. 752 (Tri. - Bang.) e) CCE Vs ADF Foods Ltd 2009 (16) S.T.R. 564 (Tri. - Ahmd.) f) Rawmin Mining Indus. Ltd Vs CCE Bhavnagar 2009 (13) S.T.R. 269 (Tri. Ahmd) g) JK Tyre Industries Ltd Vs CCE Mysore 2010 (18) S.T.R. 637 (Tri. - Bang.) h) Stovec Industries Ltd Vs CCE Ahmedabad 2014 (33) S.T.R. 155 (Tri. - Ahmd.) (viii) He also pointed out recent decision of the Hon ble Gujarat High Court in case of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration to submissions by both sides and the various case laws cited by them and also considered written submission, filed by both sides. Hearing submissions made at length by both sides and perusing relevant case records, it is seen that there is no dispute on the facts of case. In order to resolve the issue, it is imperative that reference to Provisions of Rule 21 of the Central Excise Rules 2002 as reproduced hereinabove, we reproduce the provisions of Rule 4 of the Central Excise Rules 2002 which provides for payment of duty on removal:- RULE 4. - Duty payable on removal. - (1) Every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in rule 8 or under any other law, and no excisable goods, on which any duty is payable, shall be removed without payment of duty from any place, where they are produced or manufactured, or from a warehouse, unless otherwise provided. Thus Rule 4 ibid reads that the duty of excise becomes payable in normal circumstances on removal from factory, unless otherwise provided. However, in case of clearances for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted i.e. goods have to be treated as destroyed in the hands of appellant before its removal. 11. On the other hand Ld. Departmental Representative s reliance on the decision of the Hon ble Supreme Court in case of J.K. Spinning Weaving Mills Ltd Another - 1987 (32) ELT 234 (SC) to argue that Place of removal will be factory only may not carry the case of the Revenue any further for the reason that in the said case, the issue was for the period prior to the amendment to section 4(3)(C)(iii) w.e.f. 14.05.2003. We also find from the records that prior to 14.05.2003, the place of removal was only Factory or Warehouse as referred to in section 4(3)(C)(i) and (ii). Therefore, this decision pertaining to the period prior to 14.05.2003, will not apply to the facts of this case, which pertains to the year 2008. Similarly, the decision of the Larger Bench in case of Gupta Metal Sheets - 2008 (232) ELT 796 (Tri-LB) is also not applicable in this case. The view taken in the said case was that said case the issue was about availability of remission in case of theft of the goods and it was held that, the term loss in Central Excise law to be understood as being unavailable fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Place of Removal will be applicable in the case under consideration. 13. By referring to section 5 of Central Sales Tax Act, we also find that sale of goods can be deemed to take place in the course of Export of goods out of the territory of India only if the sale for such export is effected by a transfer of documents of title to the goods, have crossed the custom frontier of India . It is settled position of law, in view of the decisions placed before us, that in case of exports the place of removal is the port of shipment. Accordingly, we have no hesitation in following the recent decision of the Hon ble Gujarat High Court in case of Commissioner v/s Dynamic Industries Ltd in the Tax Appeal No. 912 of 2012 decided on 25.07.2014, wherein the Hon ble High Court has also upheld view taken by CESTAT to the effect that port of shipment is the place of Removal in the cases of exports . Once such a view is taken, we find that the decisions in case of Kuntal Granites ltd v/s C.C.E reported at 2007 (215) ELT.515 (Tri-Bang.) and followed in subsequent decisions like in case of Liva Healthcare Ltd v/s CCE, Nasik - 2008 (222) ELT 243 (Tri. Mum.) and others is a good law, and requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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