TMI Blog2013 (3) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... port goods from factory to port of export and not the ocean freight or freight incurred beyond port of export, there is no reason for not considering the local freight as part of value in view of above discussed statutory provisions. As such the demand of duty and interest as confirmed with the impugned orders is not sustainable. Government therefore set aside the impugned orders - Decided in favour of assessee. - F. No. 195/657/2006-RA - 287/2013-CX - Dated:- 21-3-2013 - Shri D.P. Singh, Joint Secretary Shri Om Prakash Sharma, Manager, for the Assessee. ORDER This revision application is filed by M/s. Banswara Syntex Ltd., Banswara against the Order-in-Appeal No. 337-346 (HKS)/CE/JPR-II/2006, dated 31-5-2006 passed by Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate to the extent of ₹ 1,96,422/- is demanded back because duty was paid on local freight from factory to port rather than transaction value at factory gate. The clearance was made under the signature of Range Superintendent and Inspector and the value in this regard was accepted by the Range. There is no dispute that the duty of ₹ 1,96,244/- was paid by the applicant at the time of removal and the range office has not challenged payment of such duty and therefore the rebate sanctioning authority does not have any jurisdiction to reject the rebate claim for the reason that duty was paid on a value in excess than the transaction value. The Circular No. 510/06/2000-CX., dated 3-2-2000 of the Board which states that if duty is pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation at all about not fulfilling of any of the conditions as specified in Rule 18 read with Notification No. 19/2004-C.E. (N.T.). The applicant paid excise duty as evidenced in relevant ARE-1. The export took place as per proof of export submitted and all other conditions have been fulfilled. In such circumstances denying of a valid rebate claim is unjustified and illegal. It is a settled principle of law that duty actually paid is to be rebated and that too in cash. If it is established that duty was paid then rebate cannot be denied on the ground that duty was wrongly paid or paid in excess than what was payable. Case laws relied upon by the applicants are : UOI v. Kamalakshi Finance Corporation Ltd. - 1991 (55) E.L.T. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of revision application. 7. Government has carefully gone through the relevant case records and peruse the Impugned Order-in-Original and Order-in-Appeal. 8. On perusal of records, Government notes that the original authority observed that the applicants were entitled for cash rebate to the extent of duty paid by them on transaction value of the export goods in terms of Section 4(l)(a) of Central Excise Act, 1944 and the excess duty paid on account of local freight charges had to be allowed as Cenvat credit. He accordingly confirmed the demand of erroneously sanctioned rebate with interest giving option to the applicants to take Cenvat credit of an equal amount of ₹ 1,96,422/- after deposit of the same through TR-6 challan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein 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. 9.4 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 are sold for delivery at a place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, excluding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation covered by the earlier section 4(4)(b)(iii). In the Finance Bill, 2003 (clause 128), the definition place of removal is proposed to be restored, through amendment of section 4 to the position as it existed just prior to 1-7-2000. 8. Thus, it would be essential in each case of removal of excisable goods to determine the point of sale . 10. From above, it is clear that expenses incurred upto the place of removal/point of sale are includible in the value determined under Section 4 of Central Excise Act, 1944. In this case, there is no dispute about place of removal which is stated as port of export where ownership of goods is transferred to the buyer. Applicant s claim that in this case place of removal is not factory but the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
