BANSWARA SYNTEX LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Brief facts relevant and essential for disposal of the writ petition are noted herein below.

(2.) The petitioner being a company incorporated under the Indian Companies Act, 1956 is indulged in business of exporting man made yarn to countries outside India. It sought rebate of excise duty on 7 different consignments exported by it in the year 2016. The rebate sought included post removal charges from the factory gate to the Port of Export. After transporting the goods in question, the writ petitioner submitted separate rebate claims to the Adjudicating Authority i.e. the Assistant Commissioner, Central Excise and Service Tax Division, Chittorgarh. While filing the rebate applications, the petitioner referred to the order dtd. 30/3/2016 passed by the Commissioner (Appeals), Customs and Central Excise, Jaipur in Appeal No.46to66(AK)CE/JPR/2016 and prayed that the rebate claim be processed without deducting the freight/ insurance/ THC from FOB value. The bone of contention between the parties was as to whether the place of removal should be considered as the factory gate or the Port of Export. The Assistant Commissioner accepted the rebate claims of the petitioner vide order dtd. 1/7/2016.

(3.) The Assistant Commissioner, while accepting the application, relied on the earlier order passed by the Commissioner (Appeals) dtd. 30/3/2016 in the case of the petitioner and held that the Port of Export was to be considered as the place of removal and accordingly, the rebate claims were accepted and a sum of Rs.13,00,485.00 was sanctioned as rebate in favour of the petitioner alongwith credit of Rs.5,944.00 in the CENVAT Credit account. Aggrieved of the order dtd. 1/7/2016 passed by the Adjudicating Authority, the Department preferred appeals to the Commissioner (Appeals), Central Excise and Central Goods and Services Tax, Jodhpur which came to be rejected by order dtd. 26/10/2017. While rejecting the appeals, the Appellate Authority referred to the order passed by the Revisionary Authority of the Department of Revenue, Ministry of Finance, Government of India whereby, revision involving identical issue was dismissed observing that in case of export, the place of removal would be the Port of Export and not the factory gate. It was held that the 'sale' is completed when the consignment is handed overto the buyer. Hence, in case of export, sale would be concluded when the goods are handed over to the shipping line at the port. The Appellate Authority also relied upon the Board's circular dtd. 28/2/2015 whereby, it was clarified/directed that in case of clearance of goods for export by manufacturer exporter, the place of removal would be the Port/ICD/CFS. Aggrieved by the rejection of its appeals by order dtd. 26/10/2017, the Department preferred Revision Application to the Central Government under Sec. 35EE of the Central Excise Act which have been accepted by the order dtd. 19/12/2019 (Annexure-P/1) which is assailed in this writ petition preferred by the petitioner Company under Article 226 of the Constitution of India.