TMI Blog2018 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Government cannot withhold without the authority of law. If these facts are established, a simple corollary thereof would be that the the amount has to be returned to the petitioner. If therefore, the petitioner's request was for re- credit of such amount in Cenvat account, same was perfectly legitimate. The respondents are directed to recredit the excess amount paid by the petitioner categorising as excise duty of CIF value of the goods to the Cenvat credit account. Petition allowed - decided in favor of petitioner. - Special Civil Application No. 9659 of 2016 - - - Dated:- 9-1-2018 - Akil Kureshi And A. Y. Kogje, JJ. Mr Anand Nainawati, Advocate for the Petitioner Mr Devang Vyas, Advocate, Mr Dhaval D Vyas, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted on such additional amount of CIF value of goods, such extra amount be recredited to the Cenvat account of the petitioner. The authority however, was of the opinion that such request has to be made before the concerned authority and same cannot be granted by him as a Maritime Commissioner. He observed as under : In view of the foregoing conclusion it is explicit that CIF value cannot be transaction value and for that matter freight and insurance beyond the port of export cannot be part of transaction value. Moreover, any expenditure incurred beyond the international borders of India cannot be a part of the valuation under Central Excise Act, 1944. in view of the provisions of Section 1 wherein the jurisdiction of the said Act ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia raised preliminary objection of territorial jurisdiction of the High Court contending that the exports took place from JNPT, NhavaSheva, Raigad which is outside the territorial jurisdiction of this Court. Orderinoriginal was also passed by Maritime Commissioner, Mumbai. The appellate authority was also outside the jurisdiction of the High Court. Counsel relied on judgment of this Court in case of Adani Power Ltd. v. Union of India reported in 2016 (336) E.L.T. 297 (Guj.). 6. Learned counsel Shri Anand Nainawati for the petitioner however submitted that the manufacture of the goods took place at Surat. Goods were cleared from the factory at Surat which was an excisable event. Excise duty was paid at that moment. Rebate claim is relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the designated Maritime Commissioner. This by itself would not mean that this Court cannot entertain the present petition. 8. In case of Adani Power Ltd.(supra), facts were different. The petitioner therein had filed a writ petition challenging an order passed by the excise authority situated in Orissa rejecting the petitioner's refund claim. Against such order, a statutory appeal would lie before the Excise Tribunal at Orissa and further appeal against the judgment of the Tribunal would lie before the Orissa High Court. It was in this background, the Court refused to entertain the writ petition filed directly before the Gujarat High Court. 9. Coming to the merits of the case, again undisputed facts are that the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me has to be returned to the applicant in the manner it was paid. Hence, Government observes that the applicant is entitled for the take (sic) credit in their cenvat account in respect of the amount paid as duty on freight insurance charges. The applicant was not even required to make a request with the department for allowing this recredit in their cenvat account. The adjudicating officer/Commissioner (Appeals) could have themselves allowed this instead of rejecting the same as timebarred. 10. In the result, the respondents are directed to recredit the excess amount paid by the petitioner categorising as excise duty of CIF value of the goods to the Cenvat credit account. 11. Petition is disposed of. - - TaxTMI - TMITax - Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
