9911796707
TMI Blog2013 (9) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944. Commissioner (Appeals) decided the case in favour of department. 3. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government mainly the following grounds : 3.1 The applicants submit that the Commissioner while stating in his order that he has considered the rival contentions, has not given even a single finding on the various submissions made by the applicant's in their cross objections filed and has also not discussed the various decisions cited by the applicants in support of their contentions. Applicants submit that the order passed without considering the various submissions made by the applicants is grossly violative of the norms of natural justice. On this ground itself the impugned order requires to be set aside. 3.2 Applicants submit that despite the fact that the Commissioner's findings are totally against the Department, yet he has allowed the appeal filed by the Department. It was one of applicant's primary submission before the Commissioner (Appeals) that in the instant case their sale price for the subject export consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Bangalore v. Maini Precision Products Pvt. Ltd. [2010 (252) E.L.T. 409 (Tri.-Bang.)] * Sterlite Industries (I) Pvt. Ltd. v. CCE, Thirunelveli [2009 (236) E.L.T. 143 (Tri.-Chennai)]. 4. Personal hearing was scheduled in this case on 8-8-2013. Nobody attended the hearing. 5. Government has carefully gone through the relevant case records and considered the impugned order-in-original and order-in-appeal. 6. Government observes that applicant's rebate claims were initially sanctioned by the original authority vide impugned order-in-original. Department filed appeal against the impugned order-in-original on ground that rebate was allowed on declared ARE-1 value, which was much higher than transaction value which is FOB value declared on respective shipping bills. Commissioner (Appeals) decided the appeal in favour of department. Now, the applicant has filed this revision application on grounds mentioned in Para (3) above. 7. Government observes that for proper understanding of the issue of valuation, the relevant statutory provisions for determination of valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veraged, the cost of transportation calculated in accordance with generally accepted principles of costing. Explanation 2. - For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purpose of determining the value of the excisable goods." 7.5 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 words "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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r premises from where the goods were to be sold. Though the definition of "place of removal" was amended 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." 7.7 Government observes that the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate." Hon'ble High Court of Punjab & Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially. 8. Government notes that in the case applicant has paid duty on CIF value which was declared as value in Central Excise Invoice for payment of duty. In view of position explained above, the freight & insurance expenses incurred beyond place of removal cannot form part of transaction value. In this case the lower authorities has determined the FOB value as transaction value since goods stand sold at the port of export where possession of goods is transferred. As such, the rebate of duty paid on FOB value is rightly sanctioned. However, the excess paid amount be allowed as recredit in the Cenvat credit account from it was paid/debited. The impugned order-in-appeal is modified to this e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
