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TMI Blog2016 (7) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... xported. Further, Government notes that the applicant has failed to declare the moisture content in the goods at the point of taxation viz. the clearance from the factory of export. Hence the lower authorities have rightly observed that any such exercise to determine moisture loss or to argue that the difference in quantity is due to moisture loss is futile. In any case it is a fact on record that the goods have been short shipped for whatever reason and as per provision of law rebate of duty cannot be allowed on the quantity of goods which have not been exported. - Decided against the appliance. X X X X Extracts X X X X X X X X Extracts X X X X ..... vey Agency is also acceptable in the international trades of product. The agency given certificate almost for whole consignment exported from Kandla and Mundra Port. 4.2 Therefore, the certificate issued by the Survey Agency M/S. IGI Pvt Ltd. have the legal validity and when such certificate become necessary and even considered as part of the assessment procedure when the export assessment were done by the proper officer of customs, then such certificate must be relied upon while granting the various exemption to the assessee. 4.3 Accordingly the contention of both the Adjudicating Authority and the Appellate Authority that while granting the rebate, various certificate as issued by the Survey Agency M/S. IGI Pvt. Ltd. cannot relied upon is clearly wrong, invalid and must be considered as illegal and therefore the Order-in-Original as well as the Order-in-Appeal must be quashed and the consequential relief may be granted to the applicant. 4.4 The Commissioner (Appeals) wrongly observed that the loss due to moisture content is not allowable under any Rules / Act / Law or any Circular / Clarifications etc. The Act / Rules governing the rebate nowhere specified the remedies for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the actual weight of the cargo is having moisture at (18.68). 4.6 Since the goods cleared from the factory had been fully exported except for the moisture loss therefore the benefit as explained in the sectionIl (2)(a) and rule 18 of Central Excise Rules as well as the Notification No. 19/2001-CE(NT) dated 06.09.2004, may be granted on the quantity which is removed from the factory. 4.7 It is submitted that the difference in quantity is only due to moisture and when dry weight is considered the quantity remain same at every calculation. (small differences of about 3.5% will always remain as the ratio of moisture content is calculated on weighted average basis). 5. Personal Hearing in these cases were held on 11.05.2015, 03.08.2015 and 24.08.2015. Shri Abhishek Darak, Chartered Accountant attended the hearing on behalf of applicant. He reiterated grounds of Revision Application. The applicant further in his written submission dated 03.082015 mainly reiterated contents of Revision Application. 6. Government has carefully gone through the relevant case records available in case files, oral & written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that total quantity of the goods cleared from the factory as reflected in ARE-I and Central Excise Invoices was not exported as reflected in Shipping Bill. By virtue of interpretation of above said provisions, only duty paid on actual quantity of goods becomes eligible for rebate. As such, Government finds no illegality in order of original authority restricting rebate to actual quantity of goods exported. 10. The applicant has further claimed that the difference in quantity cleared from the factory and that exported was due to loss of goods occurred on account of moisture content and transportation handling losses subsequent to clearance from factory. In this regard, Government notes that the applicant could not cite any applicable provisions, where such loss subsequent to clearance from the factory for the impugned goods is allowed under the relevant provisions of the Central Act and Rules thereof. In absence of any such provision for loss of goods on account of moisture loss and fixing of any percentage loss for the purpose, Government finds no ground to interfere with the order to hold as inadmissible the rebate of duty paid over and above actual quantity exported. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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