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TMI Blog2011 (7) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... l, applicant Department preferred an appeal against the said Orders-in-Original before the Commissioner (Appeals) on the grounds that the claimant paid duty on the price which was inclusive of freight and the duty paid on the freight was not admissible for rebate under Rule 18 of the Central Excise Rules, 2002. The Department s appeals were rejected by Commissioner (Appeals) vide impugned Order-in-Appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government mainly on following grounds :- 4.1 Commissioner vide impugned Order-in-Appeal allowed the departmental appeal on the issue that value for the purpose of payment of duty even in export case shall conform to Section 4 or Section 4A, as the case may be of the Central Excise Act, 1944. However, he has erred in rejecting the departmental contention that Section 4 value in case of export shall be value at the factory gate and hence it will be FOB value less post-removal expenses from factory gate to port of export. The findings of Commissioner (Appeals) do not seem to be correct. From the perusal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove sanction of rebate claims in cash to the extent they include the amount which represents the amount of duty paid on all the expenditures incurred by the assessee, from factory gate onwards, is improper as these charges were required to be deducted from FOB value to arrive at assessable value under Section 4 of the Central Excise Act, 1944, for the purpose of rebate claim. 4.6 In view of the above sanction of rebate claims in cash to the extent they include the amount which represents the amount of duty paid on all the expenditures incurred by the assessee, from factory gate onwards, is improper as these charges were required to be deducted from FOB value to arrive at assessable value under Section 4 of the Central Excise Act, 1944, for the purpose of rebate claim. 4.7 Therefore, it appears that Commissioner (Appeals) has erred in rejecting the departmental contention that Section 4 value in case of export shall be FOB value less post-removal expenses from factory gate to port of export. The findings of Commissioner (Appeals) do not seems to be correct because as per provisions of Section 4 of the Central Excise Act, 1944 it is amply clear that factory gate is the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar is placing a different interpretation than that of the Supreme Court. 5.4 The application of the Revenue does not contain a single finding if any of the conditions or requirement as mentioned in Rule 18 for claiming rebate has not been satisfied. A valid rebate claim cannot be rejected unless the conditions for granting of such rebate is not alleged to be contravened. While filing application the Revenue placed reliance on Order Nos. 589-593/05, dated 29-11-2005 in case of National Tools (Exports), Jodhpur and Order Nos. 536-582/05, dated 24-11-2005 in case of Banswara Syntex Ltd. In this regard respondents wish to submit that there is nothing in the above said two decisions to support that the assessable value in case of export is transaction value at factory gate. It has not decided at all whether transaction value prevailing at factory gate or prevailing at port should be considered for the purpose of valuation of export goods for paying the duty of excise. A perusal of the orders would show that it has only held that it has remanded the matter to the adjudicating authority to determine the transaction value as per the provisions of Section 4 of Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main part of the definition of input services, hence credit of the same is allowable. The judgment of Hon ble High Court is reported at 2009-TIOL-110-HC-P H-ST = 2009 (236) E.L.T. 431 (P H) = 2009 (14) S.T.R. 3 (P H). In view of above legal position, the present application is liable to be dismissed and there is no restriction on taking credit in Notification No. 41/2007-S.T., dated 6-10-2007 further amended by Notification No. 3/2008-S.T., dated 19-2-2008. One of the grounds taken in application of the Revenue is that credit on Service Tax paid on removal expenses paid cannot go beyond transport up to the place of removal. This view appears to be supported by issuance of Notification No. 3/2008-S.T., dated 19-2-2008. 6. The personal hearing in this case scheduled for 2-5-2011 was attended by Shri Shaleen Baheti, authorised representative on behalf of respondent who reiterated their written submissions. Nobody appeared for hearing on behalf of the applicant Department. 7. Government has carefully gone through the records of the case including order of the lower authorities and submissions as made above. 8. Government observes that the original authority initially san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined 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 excisable goods shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal up to the place of delivery of such excisable goods. Explanation 1. - Cost of transportation includes - (i) The actual cost of transportation; and (ii) In ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended with effect from 1-7-2000, the point of determination of the assessable value under section 4 remained substantially the same. Section 4(3)(c)(i) [as on 1-7-2000] was identical to the earlier provision contained in Section 4(4)(b)(i), Section 4 (3)(c)(ii) was identical to the earlier 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 sale of the goods. 10. Government observes that department is considering the place of removal on factory gate ignoring the terms and conditions of sale agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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