TMI Blog2013 (9) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law In the case applicant has paid duty on CIF value which was declared as value in Central Excise Invoice for payment of duty. In view of position explained above, the freight & insurance expenses incurred beyond place of removal cannot form part of transaction value. In this case the lower authorities has determined the FOB value as transaction value since goods stand sold at the port of export where possession of goods is transferred. As such, the rebate of duty paid on FOB value is rightly sanctioned. However, the excess paid amount be allowed as recredit in the Cenvat credit account from it was paid/debited - Decided partly in favour of assessee. - F. No. 195/1049/11-RA - 1275/2013-CX - Dated:- 19-9-2013 - Shri D.P. Singh, Joint Secretary None, for the Assessee. None, for the Department. ORDER This revision application is filed by the applicant M/s. Narendra Plastic Pvt. Ltd., Mumbai against the order-in-appeal No.US/182/RGD/11, dated 9-8-2011 passed by the Commissioner (Appeals), Central Excise, Mumbai-II with respect to order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to the Government of India vide order Nos. 691-693/11-CX, dated 3-6-2011 in the case of M/s. Phthalo Colour held that : In the instant case, department is pleading that duty was on CIF value and the same was required to be paid on FOB value. At the same time they are pleading that freight and insurance is not part of transaction value. Government notes that Department has not determined the place of removal in this case. Therefore the factual details regarding place of removal are required to be verified to determine the transaction value under Section 4(i)(a) of Central Excise Act, 1944. Under such circumstances Government sets aside the impugned orders and remands the cases back to the original authority to decide them afresh after conducting the requisite verification as stated above. A reasonable opportunity of hearing is to be provided to the respondents before deciding the same. Thereafter on further observing that the Joint Secretary had taken similar stand in eight other cases which are mentioned in the impugned order and holding that the decisions of the higher appellate authorities should be followed by the lower appellate authorities the Commissioner conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Word sale has been defined in Section 2(h) of the Central Excise Act, 1944, which reads as follows : Sale and Purchase with their grammatical variations and cognate expression, mean any transfer of the possession of goods by one person on another in ordinary course of trade or business for cash or deferred payment or other valuable consideration. 7.3 Place of removal has been defined under Section 4(3)(c)(i), (ii), (iii) as : (i) A factory or any other place or premises of production of manufacture of the excisable goods; (ii) A warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) A Depot, Premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory. 7.4 The Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 is also relevant which is reproduced below:- Rule 5. Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the excisable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reight, insurance incurred beyond the place of removal/sale is to be excluded from the value as it does not form part of transaction value in terms of Rule 5 of Central Excise Valuation Rules, 2000. The GOI order No. 271/2005, dated 25-7-2005 in the case of CCE, Nagpur v. M/s. Bhagirath Textiles Ltd. reported as 2006 (202) E.L.T. 147 (G.O.I.) has also held as under :- the exporter is not liable to pay Central Excise duty on the CIF value of the goods but the Central Excise duty is to be paid on the transaction value of the goods as prescribed under Section 4 of the Central Excise Act, 1944 . It is clear from the order that in any case duty is not to be paid on the CIF value. 7.6 Supreme Court in its order in Civil Appeal No. 7230/1999 and CA No. 1163 of 2000 in the case of M/s. Escorts JCB Ltd. v CCE, Delhi reported in 2002 (146) E.L.T. 31 (S.C.) observed (in Para 13 of the said judgment) that : in view of the discussions held above in our view the Commissioner of Central Excise and CEGAT erred in drawing an inference that the ownership in the property continued to be retained by the assessee till it was delivered to the buyer for the reason that the assessee had arra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4(3)(d) of Central Excise Act. C.B.E. C. has further reiterated in its subsequent Circular No. 510/06/2000-CX, dated 3-2-2000 that as clarified in circular dated 26-4-1996 the AR4 value is to be determined under Section 4 of Central Excise Act, 1944 and this value is relevant for the purpose of Rules 12 and 13 of Central Excise Rules. The AR4 and Rules 12/13 are now replaced by ARE-1 and Rule 18/19 of Central Excise Rules, 2002. It has been stipulated in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the C.B.E. C. Circular No. 510/06/2000-CX, dated 3-2-2000 that rebate of whole of duty paid on all excisable goods will be granted. Here also the whole duty of excise would mean the duty payable under the provisions of Central Excise Act. Any amount paid in excess of duty liability on one s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon ble High Court of Punjab Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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