TMI Blog2013 (9) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of ONGC [2013 (6) TMI 683 - GOVERNMENT OF INDIA] followed. - Decided in favour of Revenue. - F. No. 198/640/2011-RA - 1272/2013-CX - Dated:- 18-9-2013 - Shri D.P. Singh, Joint Secretary None, for the Department. Shri Chandan Kumar, SFM, IOCL, for the Assesseee. ORDER This revision application is filed by Commissioner of Central Excise, Vadodara-I against the Order-in-Appeal No. 283/VDR-I/11, dated 10-8-2011 passed by Commissioner of Central Excise (Appeals), Vadodara with respect to Order-in-Original No. 6-10/Dem/JC/Dn-IV/09, dated 2-2-2010 passed by Addl. Commissioner of Central Excise, Vadodara-I. 2. The assessee viz. M/s. IOC Ltd., PO - Jawahar Nagar, Vadodara (hereinafter referred to as assessee) are engaged in the activity of clearing petroleum products under Bond as per provisions of Rule 20 of Central Excise Rules, 2002 read with Circular No. 579/16/2001-CX, dated 26-6-2001 and 581/18/2001-CX, dated 29-6-2001. A difference in the quantity cleared from the factory gate and the quantity received at the storage location was found which effectively meant that there was a transit loss/excess. Therefore, a show cause notice was issued to recover th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 is unambiguous and clear which states as under : (4) if the goods dispatched for warehousing or re-warehousing are not received in the warehouse, the responsibility for payment of duty shall be upon consignor . 3.4 That in pursuance of sub-rule (1) of Rule 20 of the Central Excise (No. 2) Rules, 2001, vide Notification No. 46/2001-C.E. (N.T.), dated 26-6-2001, the facility of removal of any excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) was extended from the factory of production or such other premises as may be approved by the Commissioner intended for storage in a warehouse registered at such place as may be specified by the Board and for export therefrom under the provisions of Rule 19 of the said Rules i.e. without payment of duty, by such exporter or class of exporters as may be specified by the said Board. Accordingly the detailed procedure along with the class of exporters and places were specified by the Board vide Circular No. 581/18/2001-CX, dated 29-6-2001. 3.5 That the procedure and provisions is termed as Export Warehousing Facility . This facility is meant for exporters who want to export the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes and re-warehousing procedures as prescribed in C.B.E. C. Circular No. 579/16/2001-CX, dated 26-6-2001. This continuation of export warehousing facility under Notification No. 46/2001-C.E. (N.T.) and Circular No. 581/18/2001-CX, dated 29-6-2001 has been clarified by the Board s Circular No. 798/31/2004-CX, dated 8-9-2004. 4. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. Respondent has filed following cross-objection vide letter dated 19-12-2011 : 4.1 The grounds of Revenue to deny the benefits of condonation of transit losses is solely on the reason that the domestic warehousing facility was withdrawn for petroleum products vide Notification No. 17/2004-C.E. (N.T.), dated 4-9-2004 read with Circular No. 796/29/2004-CX, dated 4-9-2004 wherein it was held that consequent upon the withdrawal of warehousing facility, the excise duty is liable to be paid at the time of removal w.e.f. 6-9-2004. However the above circular was with reference to domestic warehousing only. The clarification for export warehousing was issued later vide Circular No. 798/31/2004-CX, dated 8-9-2004 wherein it was clearly st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the no storage losses are permitted in the export warehouses/tanks whether intermediate or at AFS including those with such mixed storage. From the clarification given, it is clear that storage losses are not allowed but the circular is silent on the transit losses. We have applied for condonation for transit losses and not for storage losses which the Revenue is considering in the understanding of the circular. 4.3 As the goods for export warehousing are cleared in terms of the provisions of Notification No. 46/2001-C.E. (N.T.), dated 26-6-2001 in the absence of any clarification on the transit losses for export warehousing in the C.B.E. C. Circular No. 804/1/2005-CX, dated 4-12-2005, it is implied that the such losses are to be allowed in terms of the Board s Instruction vide F. No. 261/20/82/CX-8, dated 30-10-1985. 5. Personal hearing scheduled in this case on 7-8-2013 at Mumbai was attended by Shri Chandan Kumar, SFM, IOCL on behalf of the respondent who reiterated the grounds of revision application. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 26-6-2001. The Notification No. 47/2001-C.E. (N.T.) extended the facility of removal of all excisable goods including specified petroleum products from the factory of production to warehouse, or from one warehouse to another warehouse without payment of duty. The Notification No. 46/2001-C.E. (N.T.) extends the similar facility from the factory of production to warehouse for subsequent export under Rule 19 of the Central Excise Rules. As such the Notification No. 46/2001-C.E. (N.T.) is specific for removal of goods from production to export warehouse for subsequent exports. 8.3 Further, vide Notification No. 17/2004-C.E. (N.T.), dated 6-9-2004 by amending Notification No. 47/2001 the facility of removal of specified petroleum product was withdrawn. But, the facility of removal of specified petroleum products from the production to export warehouse without payment of duty as stipulated in Notification No. 46/2001-C.E. (N.T.) has not been withdrawn, and the Notification 46/2001-C.E. (N.T.) continued to be in existence. 8.4 The Circular No. 804/1/2005-CX, dated 4-1-2005 was issued to clarify some issues after withdrawal of warehouse facility of specified petroleum product by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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