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TMI Blog2015 (4) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... is notification issued under Rule 20 (1) of the Central Excise Rules, 2001 was applicable to all excisable goods including the petroleum products and the same is still in force and has not been amended. Notification No. 47/01-CE (NT)dated 26/6/01 also issued under Rule 20 (1) of the Central Excise Rules, 2001 permitted removal of only certain excisable goods mentioned in the table annexed to this notification, without payment of duty to a bonded warehouse or from one bonded warehouse to another bonded warehouse. By amending Notification No. 17/04-CE (NT) dated 04/9/04 Sl. No. 1 of the table to the Notification No. 47/01-CE (NT) was deleted as a result of which w.e.f. 06/9/04 the petroleum products manufactured by refinery could no longer be cleared without payment of duty to a bonded warehouses. However, as mentioned above, Notification No. 46/01-CE (NT) still continued and has not been amended in any manner. In other words w.e.f. 06/9/04, while the oil refineries could no longer clear the petroleum products without payment of duty to a bonded warehouses for storage there, they could still clear the petroleum products for the purpose of export to a bonded warehouse for export fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0725/2015 - Dated:- 25-2-2015 - Hon ble Shri Rakesh Kumar, Member (Technical) And Hon ble Shri S.K. Mohanty, Member (Judicial),JJ. For the Appellants : Shri L.P. Asthana, Advocate For the Respondent : Shri Pramod Kumar, Authorized Representative (DR) ORDER Per. Rakesh Kumar :- The facts leading to filing of these appeals are, in brief, as under. 1.1 The appellant M/s Indian Oil Corporation Ltd. in their oil refinery at Panipat manufacture various petroleum products including Aviation Turbine Fuel. The period of dispute in this case is from 06/9/04 to 09/8/05. During period prior to 06/9/04 there were two notifications issued under Rule 20 of the Central Excise Rules. Notification No. 46/02-CE (NT) dated 26th June 2001 issued under Rule 20 (1) of the Central Excise Rules, 2001 permitted removal of all excisable goods from the factory of production or such other premises as may be approved by the Commissioner for intended for storage in a warehouse registered at such place as may be specified by the Board and for export there from under the provisions of Rule 19 of the Central Excise Rules by such exporter or class of exporters as may be specified by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass of exporters and places of warehouses under sub-Rule (2) of Rule 20 of Central Excise Rules, 2002 for warehousing of excisable goods for the purpose of export. There is no dispute that the place where the warehouses, in question, from where the Aviation Turbine Fuel is supplied are notified under Rule 20 (2) of the Central Excise Rules. 1.3 The appellant during period prior to 06/9/04 were clearing Aviation Turbine Fuel to the bonded warehouses of IOCL, BPCL as well as HPCL at Shakur Basti under bond without payment of duty and from these warehouses, the Aviation Turbine Fuel (ATF) was being supplied to foreign going aircrafts of various airlines under shipping bills. These clearances were being made by the appellant company under ARE-1s. After withdrawal of warehousing facility in respect of petroleum products by amendment to Notification No. 47/01-CE (NT), the appellant under their letter dated 13/9/04 addressed to the Commissioner, Central Excise, new Delhi requested the conversion of their existing warehouse at Shakur Basi into export warehouse in terms of Board s Circular No. 798/31/2004-CE dated 08/9/04. Thereafter since there was no response, a reminder letter was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longwith interest on it under Section 11AB and penalty of ₹ 1,00,00,000/- was imposed on the appellant company under Rule 25 of Central Excise Rules, 2002. Against this order of the Commissioner, these two appeals have been filed. 2. Heard both the sides. 3. Shri L.P. Asthana, Advocate, the learned Counsel for the appellant, pleaded that the supplies of ATF to the warehouses at Shakur Basti for onward supply to the foreign going aircrafts had been made in terms of Notification No. 46/02-CE (NT) which had not been withdrawn or amended, that this notification permitted the clearances of any excisable goods by a manufacturer from his factory to export warehouses approved under Rule 20 of the Central Excise Rules for export there from of the goods under Rule 19 of the Central Excise Rules, that Notification No. 47/01-CE (NT) dated 26/6/01 which had been amended by Notification No. 17/04-CE (NT) dated 04/9/04 so as to remove the petroleum products from its purview, was only in respect of removal without payment of duty of certain specified excisable goods from a factory to a bonded warehouse or from one bonded warehouses to another bonded warehouses and not for export, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport is without any basis, that in respect of clearances of ATF for export under ARE-1s, duty can be demanded only if there is evidence of diversion of the goods cleared, backed by evidence on record, but in this case there is neither any allegation, nor any such any evidence has been produced, and that in view of the above submissions, the impugned order is not sustainable. 4. Shri Pramod Kumar, learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that the appellant did not obtain separate registration in respect of their Shakur Basti Warehouse as intermediate export warehouse and, hence, the warehouse at Shakur Basti cannot be treated as a premises approved by the Commissioner for storage of non-duty paid goods for export, that in terms of Notification No. 46/01-CE (NT) dated 26/6/01 removal of any excisable goods by a manufacturer without payment of duty to a bonded warehouse for the purpose of export is permissible only when the warehouse for storage of non-duty paid goods has been approved by the Commissioner and is located at a place specified by the Board, that the appellant company had applied to the Commissioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued and has not been amended in any manner. In other words w.e.f. 06/9/04, while the oil refineries could no longer clear the petroleum products without payment of duty to a bonded warehouses for storage there, they could still clear the petroleum products for the purpose of export to a bonded warehouse for export from that warehouse. It is for this reason that the Board vide Circular No. 798/31/04-CX dated 08/9/04 clarified that while the facility of removal of petroleum products without payment of duty from a Refinery to a bonded warehouse or from one bonded warehouse to another bonded warehouse has been withdrawn w.e.f. 06/9/04 vide Notification No. 17/04-CE (NT) dated 04/9/04, the facility of removal of petroleum products without payment of duty for export warehousing continues to be available under Notification No. 46/01-CE (NT). This position was reiterated again in the Board s Circular No. 804/1/2005-CX. dated 04/1/05 and in this Circular the Board also clarified that for the purpose of exports, separate storage of the duty paid and non-duty paid petroleum products is not required subject to condition that tankwise account is maintained about the receipt and discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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