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TMI Blog2013 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ort is required to be deducted from FOB value to arrive at transaction value, is not tenable. - Decided in favor of Assessee. - F. Nos. 198/173-188/2010-RA - Order Nos. 579-594/2012-CX - Dated:- 21-5-2012 - Shri D.P. Singh, J. Shri Pulak Raj Mullick, Advocate and B.B. Gandhi, Manager, for the Assessee. ORDER These revision applications are filed by the Commissioner of Customs Central Excise Meerut-I against the orders-in-appeal No. 185-200-C.E./MRT-I/10, dated 29-1-2010 passed by Commissioner (Appeals), Customs Central Excise Meerut-I with respect to Order-in-Original passed by the Assistant Commissioner, Central Excise, Division - Dehradun. M/s. Nov Sara India (P.) Ltd. who are the respondents herein. 2. Brief facts of the case that Respondent M/s. Nov Sara India (P) Ltd., are engaged in the manufacture of excisable goods namely oil filed equipments/machinery and their parts. The said party had filed sixteen rebate claims under Rule 18 of the Central Excise Rules, 2002 on the grounds that they had exported the subject excisable goods on payment of Central Excise duty. All the sixteen rebate claims were sanctioned by the Adjudicating authority except for a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Board s Circular No. 203/37/96-C.E., dated 26-4-1996 and Board s 37B order No. 59/1/2003-CX., dated 3-3-2003 for sanction of rebate, envisage that value for goods taken for export should be determined under Section 4 of Central Excise Act, 1944 as FOB value is contracted price in the course of international trade and that would normally correspond to Section 14 of Customs Act, 1962. FOB value need not necessarily be Section 4 value. Thus, in terms of Board s Circular/Order (supra), Section 4 value of the goods exported is to be considered after deducting all the expenses on account of logistics on actual, inland transportation, handling charges etc. incurred after the place of removal i.e. factory gate to arrive at value under Section 4 of the Central Excise Act, 1944 for granting rebate in cash. The party is eligible for rebate of duty, in cash only to the extent of Section 4 value of the goods exported and not FOB value, as claimed by the party. The rebate sanctioning authority should have restricted the sanction of rebate following the principles laid down in the Board s Circular/Order. The rebate sanctioning authority has however in the impugned order has stated the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of freight and insurance as claimed by the party is not correctly mentioned in the BRC as also submitted by the Deputy Commissioner of Central Excise vide his letters dated 25-9-2009, 16-10-2009 and 30-10-2009. Thus, the amount of rebate of duty sanctioned on freight insurance component through Cenvat Credit account is much less than the amount of duty involved on actual amount of freight and insurance incurred by the party. These amounts were required to be paid in Cenvat Credit account in place of cash rebate. 4.5 On the identical issue of the same party the department has filed appeals against Orders-in-Original No. R-131/09, dated 7-9-2009, R-132/09, dated 7-9-2009 and R-115/09, dated 24-8-2009 wherein the department contended that the rebate sanctioned on account of Central Excise duty involved on sea freight and insurance was not correct because the same was not shown actual in the Shipping Bill as also admitted by the party that due to typographical error on the part of Customs officers at Delhi lesser amount of freight and insurance has been shown in the Shipping Bill. The Commissioner (Appeals) vide her Order-in-Appeal No. 235 to 237-C.E./Meerut-I/10, dated 26-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944, 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. 9.3 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. 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 exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be essential in each case of removal of excisable goods to determine the point of sale . As per the above two Apex Court decisions this will depend on the terms (or conditions of contract) of the sale. The insurance of the goods during transit will, however, not be the sole consideration to decide the ownership or the point of sale of the goods. 10. Government observes that from the perusal of above provisions it is clear that the place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of word any other place read with definition of Sale , cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country. Government observes that once the place of removal is decided within the geographical limit of the country, it can not be beyond the po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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