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2016 (7) TMI 982 - GOVERNMENT OF INDIA

2016 (7) TMI 982 - GOVERNMENT OF INDIA - TMI - Rebate claim - export of less quantity of goods - natural loss of goods in transit - The applicant claimed that the difference in quantity cleared from the factory and that exported was due to loss of goods occurred on account of moisture content and transportation handling losses subsequent to clearance from factory. - Held that:- In this regard, Government notes that the applicant could not cite any applicable provisions, where such loss subsequen .....

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t in the goods at the point of taxation viz. the clearance from the factory of export. Hence the lower authorities have rightly observed that any such exercise to determine moisture loss or to argue that the difference in quantity is due to moisture loss is futile. In any case it is a fact on record that the goods have been short shipped for whatever reason and as per provision of law rebate of duty cannot be allowed on the quantity of goods which have not been exported. - Decided against the ap .....

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5.11.2011 and 1107/2011-12 passed by the Assistant Commissioner of Central Excise, Gandhidham, Kutch. 2. The issue in brief is that the applicant has filed rebate claims for the central excise duty paid on the goods manufactured by them, cleared under various ARE-Is and exported through M/S. Saurashtra Fuels Pvt. Ltd., Ahmedabad. During the scrutiny of the documents filed with the rebate claim, the lower authority observed that the applicant had cleared Metallurgical coke under various ARE-Is an .....

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eals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed these revision applications under section 35EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 It is to submit that the observation of the Commissioner (Appeal) that the applicant had not able to produce any concrete documentary' evidence to prove his claim. It is pertinent to note that the observation was given in spite of the fact that the applicant .....

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ertificate and various assessments were completed on the basis of such certificates. b. On the basis of the certificate as issued by the Agency, the master of vessel issued the mate receipt in respect of exported goods. c. On the basis of the certificate as issued by the Survey Agency, the applicant had issued Commercial invoice and after given effect of excessive moisture content, the final value of the commercial invoice is determined and on the basis of the said commercial invoice, FEMA compl .....

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done by the proper officer of customs, then such certificate must be relied upon while granting the various exemption to the assessee. 4.3 Accordingly the contention of both the Adjudicating Authority and the Appellate Authority that while granting the rebate, various certificate as issued by the Survey Agency M/S. IGI Pvt. Ltd. cannot relied upon is clearly wrong, invalid and must be considered as illegal and therefore the Order-in-Original as well as the Order-in-Appeal must be quashed and th .....

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e not related to the rebate claim therefore the same cannot be relied in the present case. Therefore, he upheld the order passed by the Adjudicating Authority. In this regard, the applicant herewith submit that this is the settle legal position that the losses due to natural causes are considered and even excise duties are not levied in the Central Excise Act. Further the spirit of cases as cited before the Commissioner (Appeal) are really identical to the present case. The cited cases detailed .....

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stated that section Il(2)(a) of the Central Excise Act, 1944, Rule 18 of the Central Excise Rules, 2002 as well as the Notification 19/2001-CE(NT) dated 06.09.2004 are related to the goods exported out of India and since the actual exported goods is lesser than quantity cleared from the factory as per the EP copy of the shipping bill therefore the Commissioner (Appeals) held that the rebate must be allowed only on actual quantity not on the whole quantity as cleared for export from factory. The .....

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because of transportation / handling loss. Further the same agency supervise the loading of cargo from the port area to the foreign going vessel and after carrying the draught survey, they certified that the actual weight of the cargo is having moisture at (18.68). 4.6 Since the goods cleared from the factory had been fully exported except for the moisture loss therefore the benefit as explained in the sectionIl (2)(a) and rule 18 of Central Excise Rules as well as the Notification No. 19/2001- .....

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ant attended the hearing on behalf of applicant. He reiterated grounds of Revision Application. The applicant further in his written submission dated 03.082015 mainly reiterated contents of Revision Application. 6. Government has carefully gone through the relevant case records available in case files, oral & written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 7. Upon perusal of records during the scrutiny of the rebate claims filed by the applicant, it was no .....

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ese revision applications under Section 35EE of the Central Excise Act, 1944 on the grounds in para 4. 8. Government observes that the issue to be decided in which the impugned goods can be said to have been "exported" for the applicant to be entitled to rebate in terms of Rule 18 of the Central Excise Rules, 2002 The lower authorities have held the part rebate claims inadmissible on the ground that the full quantity cleared from factory was actually not exported. The applicant on the .....

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oods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfilment of such procedure, as may be specified in the notification. [Explanation. "Export" includes goods shipped as provision for stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft.] 8.2 Further the word export is defined in Section 2 of the Customs Act, 1962 as under: ' .....

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rovisions, only duty paid on actual quantity of goods becomes eligible for rebate. As such, Government finds no illegality in order of original authority restricting rebate to actual quantity of goods exported. 10. The applicant has further claimed that the difference in quantity cleared from the factory and that exported was due to loss of goods occurred on account of moisture content and transportation handling losses subsequent to clearance from factory. In this regard, Government notes that .....

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