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TMI Blog2009 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 19/2004-C.E. (N.T.), dated 6-9-2004, issued under Rule 18 of Central Excise (2) Rules, 2001 and have claimed rebate of duty debit on export goods. Before passing the refund sanction order, the said rebate claims were sent to the jurisdictional Range for verification/admissibility report. The Range officer recalculated the assessable value in terms of CBEC Circular No. 510/6/2000-C.E., dated 3-2-2000 to determine the amount admissible to the respondents as rebate. On the basis of the reports of the jurisdictional Range Officer the part rebate claims representing the amount of duty paid on freight and insurance elements were rejected by the Adjuicating authority. 2.2 Being aggrieved with the orders of the adjudicating authority, the abovementioned party filed the appeal before Commissioner (Appeals), Jalandhar who allowed the appeal of the party. The Commissioner (Appeals) observed as under : (i) that in terms of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate is to be granted on whole of the duty paid on excisable goods and not on the duty payable. Therefore, it appears that there is force in the contention of the applicants. (ii) That in case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 26-6-2001 and thereafter Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 governing procedure and conditions for grant of rebate under Rule 18 stipulate that duty for the purpose of this notification means duties of excise collected under the Central Excise Act, 1944. It has also been clarified by the Board vide Circular No. 510/06/2000-CX., dated 3-2-2000 that AR 4 value is to be determined under Section 4 of Central Excise Act, 1944 and this value is relevant for the purposes of Rule 12 and Rule 13, Further, Section 4(1)(a) of Central Excise Act, 1944 stipulates that where excise duty is chargeable on any excisable goods with reference to value, then such value in a case, where goods are sold for delivery at the time and place of removal, shall be the transaction value. Place of removal under Section 4(3)(c) means place of production or manufacture of excisable goods or warehouse where goods are stored without payment of duty. Thus incase or removal of goods from the factory, transaction value excludes the cost of transportation from the place of removal up to the place of delivery of excisable goods. The same position holds goods for insurance charges also, as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon ble Supreme Court has held inter alia in the case of Paper Products reported as 1999 (112) E.L.T. 765 (S.C.) that Circular are binding upon the Departmental authorities. In view of this order sanctioning rebate claim which had initially been rejected by the original adjudicating authority contrary to the Circular cannot be treated as incorrect. 4.2 The Commissioner (Appeals) has rightly relied upon the decision of the Tribunal in the case of Bharat Chemicals v. CCE, Thane reported as 2004 (170) E.L.T. 568 wherein it has been held that the actual amount of duty paid to be returned as rebate and not the amount of duty payable. The reason for not accepting the decision of the Tribunal as given in the revision application is that the Department has not accepted the same and an appeal has been filed before the Bombay High Court and does not merit to sustain. Mere filing of the appeal against the decision of the Tribunal is no ground to take a divergent view unless and until it is reversed by higher appellate authority. The above view finds support from the following decisions of the following decisions of the Tribunal : (i) CCE, Coimbatore v. Chemplast Sanmar Ltd. - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided exactly identical issue vide Revisionary Order No. 271/2005 dated 25-7-2005, in case of other applicants, the relevant portion of which is reproduced below : 8.1 Govt. has carefully gone through the written and oral submissions. Govt. has also gone through the Order-in-Original, and the impugned Order-in Appeal. The only question is to be decided in the instant Revision Application of Central Excise duty on the impugned goods? For the purpose of valuation of the excisable goods relevant Section is Section 4(1) of the Central Excise Act, 1944, which is extracted below :- Section 4 (valuation) Valuation of excisable goods for purpose of charging of duty of excise :- (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall- (a) in a case where the goods are sold by the assessee for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty is to be paid on transaction value of the goods as prescribed under Section 4 of the Central Excise Act, 1944. However, it is also fact that the respondents have paid excess duty to the tune of Rs. 2,35,192/- which is to be refunded to the respondents in the manner in which it was paid. 8.5 In view of facts and circumstances, Govt. is of the considered opinion that the impugned Order-in-Appeal is not maintainable and Govt. accordingly sets aside the impugned Order-in-Appeal. Govt. also permits the respondents to take back the Cenvat Credit of Rs. 2,35,192/- which is related to Central Excise duty paid on CIF value of the impugned goods. 7. As the facts of the instant case are similar to the above quoted case, the ratio of above said order is squarely applicable this case. In this case rebate is not admissible of the amount equal to duty paid erroneously on the post factory removal expenses of freight and insurance which do not form part of transaction value. The said duty which was not required to be paid can only be treated as deposit and is to be refunded back in the manner it was paid either from cenvat credit or cash. 8. Revision application is being disposed off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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