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TMI Blog2014 (11) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944 and Rules framed thereunder. In this case, we concerned with Rule 18 of the Central Excise Rules, 2002. 4. The claim of the Petitioner is that it procured Aviation Turbine Fuel, for short (ATF) from the refinery of M/s.Bharat Petroleum Corporation Ltd., for short (BPCL), at Trombay. The said fuel was supplied to the Petitioner by BPCL on payment of duty of excise. That fuel was initially stored at the terminal and thereafter it was sold at NITC, IGI Airport, Delhi. A part quantity of ATF purchased from the said BPCL was for supply to aircrafts on foreign run. The invoice copies are annexed at Annexures A to D. The Petitioner pointed out that the safety requirements and lack of space at airport permits storage facility to BPCL at IGI Airport, New Delhi. In this case, ATF was purchased from BPCL and part of it was sold to BPCL itself. The other part of ATF acquired from BPCL was sold to aircraft on foreign run. The Petitioner obtained a joint certificate which is at Annexure-E and thereafter proceeded to lodge a claim for refund of Rs. 10,93,745/- being the duty paid on the ATF supplied to aircraft on foreign run. That was the ATF which was supplied from NITC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted goods to aircraft on foreign run from the AFS. In the instant case, the goods are not exported directly from the factory and the AFS is not a warehouse. The provisions of Notification No.19/2004 lays down that the excisable goods shall be exported after payment of duty, directly from a factory or warehouse except as otherwise permitted by the Central Board of Excise and Customs by general or special order. Hence permission from CBEC was a pre-requisite under the said Notification (supra). This cannot be said to be procedural condition as the identity of goods exported are required to be established. The rebate can be sanctioned, if the same goods which suffered duty are exported and necessary permission should have been obtained by them from CBEC. I observe that the appellants could not prove either before the lower authority or in the present appeal that the ATF exported had suffered duty and the very same ATF was actually exported. Therefore, the appellants failed to comply substantially the conditions laid down under Rule 18 ibid, and hence they are not entitled for rebate. As such the impugned order passed by the lower authority is sustainable and I do not want to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(a) of the same. Relying upon this condition, Mr.Patil would submit that on 12th November 2005 the Petitioner clarified that the Office of the Commissioner, Central Excise, Delhi-II granted permission to establish Export Warehouse at Aviation Fuelling Station, Delhi Airport, Terminal-II. Mr.Patil, also invites our attention to the Notification, and which, inter alia, stipulated that the excisable goods shall be exported after payment of duty directly from a factory or warehouse, except, as otherwise permitted by the Central Board of Excise and Customs by general or special order. Mr.Patil submits that if the export is made after payment of duty directly from the factory or warehouse, then there is no question of obtaining a permission from the Board, that is only when the goods are exported not from a factory or a warehouse. Mr.Patil submits that in identical circumstances and in the case of very Petitioner, a refund application was granted. The refund application was granted by the Appellate Authority and in that case reliance is placed on the order passed by another Appellate Authority. However, Mr.Patil would submit that in the present case, the Notification has been misread a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the Revisional Authority could not have held that there is no compliance with the condition. The Revisional Authority has further observed that the Circular issued by the Central Board of Excise and Customs dated 30 January 1997 has held that this condition can be relaxed if the goods exported are identifiable and co-relatable with the goods cleared from the factory of manufacturer. 15. We do not find any basis for placing reliance upon this Circular dated 30 January 1997 of the Central Board, as the Notification is a subsequent document. That does not indicate as to how the refund can be denied merely because the goods, which are duty paid, have been exported from a warehouse. In such circumstances, there is no basis for the finding and conclusion that the condition in the Notification has not been fulfilled or satisfied by the Petitioner. All documents have been furnished and submitted and we do not find as to how a general and vague finding about non submission of documents can be recorded by the Authorities. In fact, findings in paras 7 & 8 of the order of the Revisional Authority are inconsistent and contradictory. If the argument of the Petitioner is that the co-rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted. 18. In the case of the Petitioner, the Gujarat High Court while deciding the Special Civil Application No.12073 of 2011 decided on 15 December 2011, found necessity of remand because the peculiar factual position therein was not identical. There the procedure required storage for consumption on board an aircraft on foreign run and which is the condition stipulated in the exemption Notification dated 26 June 2011. That was also the issue involved. That is how the remand was ordered. Such is not the factual position before us. In fact, there is no dispute about facts at all. In such circumstances, the alternate submission is also rejected. 19. As a result of above discussion and for the reasons indicated by us, this Writ Petition succeeds. Rule is made absolute in terms of prayer clause (a). The rebate claim of the Petitioner is granted by quashing and setting aside all orders namely that of the Assistant Commissioner, Appellate Authority as also the Government. The incidental communication dated 11 March 2010 is also set aside. The amount, which is subject matter of the refund claim, shall be disbursed and released in favour of the Petitioner within a period of eight week ..... X X X X Extracts X X X X X X X X Extracts X X X X
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