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TMI Blog2014 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... t exporter. 2. Brief facts of the case are that in the instant case part rebate claim of Rs. 2,03,514/- was rejected by Deputy Commissioner of Central Excise (Rebate), Raigad vide Order-in-Original No. 2129/10-11/AC, dated 18-3-2011 on the ground that the duty payable on the transaction value i.e. FOB value is rebateable under Rule 18 of Central Excise Rules, 2002 and rebate of excess duty of Rs. 2,03,514/- paid by assessee cannot be allowed. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F value of the impugned goods. 5. Personal hearing scheduled in this case on 26-11-2013 & 11-3-2014 was not attended by anybody on behalf of the applicant as well as respondent party. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government notes that applicant a merchant-exporter filed rebate claims of Rs. 51,61,636/- in respect of duty paid on exported goods. Since the duty was paid on ARE-1 value which was CIF value, the original authority determined the FOB value as transaction value in terms of Section 4 of Central Excise Act, 1944 and allowed the rebate of Rs. 49,58,022/- of duty payable on the said transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration." 8.3 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. 8.4 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 cannot be beyond the port of loading of the export goods. Under such circumstances, the place of removal is the port of export where sale takes place. The GOI Order No. 271/2005, dated 25-7-2005 in the case of CCE, Nagpur v. M/s. Bhagirth Textiles Ltd. reported in 2006 (202) E.L.T. 147 (GOI) has also held as under :- "the exporter is not liable to pay Central Excise duty on the CIF value of the goods but the Central Excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er provision in Section 4(4)(b)(ii) and Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, took care of the situation covered by the earlier Section 4(4)(b)(iii). In the Finance Bill, 2003 (clause 128), the definition "place of removal" is proposed to be restored, through amendment of section 4 to the position as it existed just prior to 1-7-2000. 8. Thus, it would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the whole duty of excise would mean the duty payable under the provisions of Central Excise Act. Any amount paid in excess of duty liability on one's own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon'ble High Court of Punjab & Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 & 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported in 2009 (235) E.L.T. 22 (P&H) has decided as under :- "Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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