TaxTMI 
TaxTMI 
2024 (12) TMI 151
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....Naphtha and ATF cleared during the relevant period meant for export. 3. The Special Civil Application No.4041 of 2014 is treated as a lead case. 4. The brief facts of the case are as under:- 4.1. The petitioner is engaged in manufacture and sale of Petroleum Products falling under Chapter-27 and Chapter-29 of the First Schedule to the Central Excise Tariff Act, 1985. The petitioner is having refinery at Vadodara, Gujarat and also have a network of market installations, Aviation Fuel Station (AFS) and depots throughout the country. 4.2. It is the case of the petitioner that in terms of Rule-20 (1) of the Central Excise Rules, 2002 (for short 'the Rules'), the Central Government by Notification can extend the facility of removal of excisable goods from the factory of production to warehouse or from one warehouse to another warehouse without payment of excise duty. Such facility provided under Rule-20 (1) of the Rules is subject to such conditions including penalty, interest, limitations etc. specified by the Central Board of Excise and Customs (CBEC). 4.3 Prior to 1.03.2002, Central Excise (No. 2) Rules, 2001 (For short 'the Rules, 2001) were in force and the R....
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.... of removal from refineries and refineries had to pay the duty on monthly basis. 4.8 The petitioner cleared the Naphtha and ATF to the various locations through different modes of transportation like Railway, Pipeline and Tank Trucks. The petitioner also filed ER-1 returns regularly and clearance of Naphtha and ATF to warehouses without payment of duty under the provision of Rule-20 of the Rules. 4.9 During the scrutiny of the ER-1 returns filed by the petitioner, the respondent Officers of the Central Excise Department observed that there was a difference in the quantity of goods cleared by the petitioner from their manufacturing premises located at EOYALI and quantity of goods received at the various locations and the shortage/excesses were mainly in the nature of transit loss or handling and unloading losses. 4.10. Consequently, show cause notices were issued by the respondent for the period from April-2008 to March-2009 for loss of the quantity in transit or during the handling or unhandling losses requiring the petitioner to pay Rs. 37,71,224/- towards excise duty. The show cause notice raised the demand invoking the provision of Rule-20 (4) of the Rules which provide....
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....r No. 804/2005 dated 04.01.2005. 4.18 Being aggrieved by the said order, the petitioner has preferred this petition. 4.19 This Court passed the following order on 19.06.2014:- 'Rule returnable on 17th July, 2014. Shri RJ. Oza, learned Counsel waives service of notice of Rule on behalf of the respondent - Department. Having heard learned advocates appearing on behalf of the parties on interim relief, it is directed that the disputed amount of duty be paid by the petitioner with the concern Commission rate under protest, which shall be subject to ultimate outcome of the present petition. The aforesaid amount shall be paid within a period of four weeks from today. However, it is clarified that if any amount has already been paid, the same may be appropriated/adjusted against the dues of the central excise dues demanded. To be heard with Special Civil Application No. 2952/2014.' 4.20 During the pendency of the Special Civil Application No.4041 of 2014, the subsequent show cause notices were issued for the subsequent period, however, the same were kept in abeyance in view of the pendency of the aforesaid petition. The respondent authority the....
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....rity has misinterpreted the clarification vide Circular No. 804/2005 dated 04.01.2005 inspite of the fact that as per the said Circular, it is clarified that the facility of removal of petroleum products without payment of duty for export warehousing continues to be available vide Notification No. 46/2001 dated 26.06.2001. However, the CBEC has clarified that no storage losses are permitted in the export warehouse/tanks whether intermediate or as AFS including those with such mix-storage and further the export warehousing under Notification No. 46/2001 dated 26.06.2001 does not cover removal of goods from one export warehouse to another. It was submitted that misinterpreting such clarification, the revisional authority has erroneously come to the conclusion that the storage loss is equivalent to the transit loss. Reliance was placed on the following observations from the order of the revisional authority:- 'From wordings of above circular, it in unambigously clear that facility of removal of petroleum products without payment of duty from factory of production of export warehousing continues to be available vide Notification No. 46/01-CE(NT) dated 26.06.2001. The said circ....
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....cular No. 804/2005 more particularly, the issue which is clarified is with regard to insertion of para-6.3 in Circular No. 581 dated 29.06.2001 which clearly stipulates that the Commissioner having jurisdiction over the warehouse may permit the registered person of the warehouse to store duty paid excisable goods for duty paid imported goods alongwith non duty paid excisable goods in the warehouse subject to the conditions, procedure and manner of payment of duty prescribed by him meaning thereby, that no storage losses are permitted in the export warehouse tanks whether intermediate or at AFS including those with such mix-storage. 11. It was submitted that warehousing facilities were withdrawn w.e.f. 2004 which is clarified by the Circular issued by the CBEC in the year 2005, and accordingly, the petitioner is not entitled to alleged transit loss of 1% being exempt from the payment of excise duty. It was submitted that the excise duty is leviable from the dispatch of the goods from the factory gate and the petitioner is not entitled to any loss which has occurred thereafter. 12. In support of his submissions, reliance was placed on the averments made in the affidavit-in-repl....
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.... sold at depot would be adopted for discharge of duty liability. (iv) Thus for discharging of duty liability the time of removal from refinery/factory gate is made the basis which has an impact in the form that the condonation of various losses i.e. transit/storage losses etc. at warehouse under permissible limit of 1% or 0.25% etc. as were prescribed under various earlier circulars was henceforth not allowed. Now the duty on the losses or damages after time of clearance from the refinery/factory gate is not remittable as all the clearance whether for domestic consumption or for warehousing against CT-3/CT-2 certificate or for end use based exemption against Annexure etc. would be leviable to duty at factory/refinery gate. (v) The procedure of export warehousing facility at the export warehouses still continued in respect of all excisable goods including petroleum products governed against CT-2 certificates and re-warehousing procedures as prescribed in CBEC Circular No. 579/16/2001-CX dated 26.06.2001. This Notification NO. 46/2001-CENT) and Circular No. 581/18/2001-CX dated 29.06.2001 has been clarified by the Board's Circular No. 798/31/2004-CX dated 08.09.2004....
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.... are dispatched for warehouse and not received at the said warehouse and or short/excess received at the said warehouse. Thus, the Central Excise duty was demanded from the petitioner under the provisions of Section 11A of the Central Excise Act, 1944 because various export warehousing stations under respective AR-3As/CT-2 Certificate were either short/excess received at the respective export warehousing destinations on which the petitioner was liable to discharge duty liability. (iii) It is further submitted that in the clarification made in the circular dated 04.01.2005 the Board has categorically denied the abatement on account of loses whether transit/storage, etc. in case of end used based exemption/export warehousing in warehouses/tanks whether intermediate or AFS or BFS by emphasizing that the duty liability after withdrawal of domestic warehousing facility required to be discharged at factory/refinery gate. (iv) Thus, if the goods cleared from factory gate finally not reached for the specific purpose (this specific purpose can either be export warehousing or end used based exemption, etc. as the case may be) they are meant for, then no condonation on accou....
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....g the facts, the short question which arises for consideration is whether in view of the Notification No. 46/2001 dated 26.06.2001 read with Notification No. 17/2001 dated 04.09.2004 and Circular No. 581/2001 dated 29.6.2001 and Circular No. 804/2005 dated 04.01.2005 whether the petitioner is liable to pay excise duty on transit loss up to 1% in view of the Circular No. 261 dated 30.10.1985 issued by the CBEC. 15. It would be therefore germane to refer various relevant Rules and Notification and Circular issued by the CBEC from time to time, which reads as under:- 'Rule-20 of Rules-2001-Warehousing provisions.- (1) The Central Government may by notification, extend the facility of removal of any excisable goods from the factory of production to a warehouse, or from one warehouse to another warehouse without payment of duty. (2) The facility under sub-rule (1) shall be available subject to such conditions (including penalty and interest), limitations (including limitation with respect to the period for which the goods may remain in the warehouse) and safeguards and procedure (including the matters relating to dispatch, movement, receipt, accountal and disposal o....
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....xcisable goods from factory to warehouse and warehouse to another warehouse without payment of duty. - In exercise of powers conferred by sub-rule (1) of rule 20 of the Central Excise (No. 2) Rules, 2001, the Central Government hereby extends the facility of removal of all excisable goods specified in column (2) of the Table below from the factory of production to a warehouse, or from one warehouse to another warehouse without payment of duty. Table Sl.No. Excisable goods 1 Goods falling under Heading Nos. 27.07, 27.10, 27.11,27.12, 27.13, (except Sub-heading NO. 2713.12), 27.14 and 27.15, of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); 2 Goods of the following description, namely:- (a) benzene; (b) toluene; (c) xylene; (d) propylene; and (e) tertiory amyl methylene ether, falling under Chapter 29 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); 3 All the following goods where such goods are cleared from the factory of production to a warehouse appointed under section 57 or licensed under section 58 of the Customs Act, 1962 (52 of 1962) and are intended for ....
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.... the following goods were such goods are cleared from the factory of production to a warehouse appointed under Section 57 or licensed under section 58 of the Customs Act, 1962 (51 of 1962) and are intended for direct supply- (a) as stores to a foreign-going vessel or aircraft; or (b) to a mean uplift station outside India; (i) Cigarettes, (ii) Aerated waters, (iii) Prepared and Preserved Foods, (iv) Aluminium foil covers, (v) Stainless steel cutlery, (vi) Butter, (vii) chese. Explanation:- 'Foreign-going vessel or aircraft' and 'stores' shall have the meaning respectively assigned to them in section 2 of the Customs Act, 1962 (52 of 1962). 2. This notification will come into force on 1st July, 2001 [Authority - Notification No. 47/2001-C.E.(N.T.), dated 26.01.2001] [3] Warehousing procedure governing the movement of goods to which warehousing provisions have been extended. - In exercise of the powers conferred under sub rule (2) of Rule 20 of the Central Excise (No. 2) Rules, 200, the Central Board of Excise and Customs specifies the following conditions, limitations, safe....
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....f the excisable goods. Notification No. 17/2004 [5] Bareja village at Daskroi Taluka in Gujarat declared a warehousing for the purpose of registration of warehouses. - In exercise of the powers conferred by the Central Board of Excise & Customs, Government of India, Ministry of Finance, Department of Revenue, New Delhi by Circular No. 16/2001-CX, dated 26.06.2001 issued under Sub-rule (2) of Rule 20 of the Central Excise Rules, 2002, I hereby declare village Bareja at Daskroi Taluka, in the State of Gujarat to be warehousing place for the purpose of registrtion of warehouses under Rule 9 of the Central Excise Rules, 2002. [Commissioner of Central Excise & Customs, Ahmedabad-I, Notification No. 1/2002-C.E.(N.T.), dated 21.06.2002] [6] Warehousing - Removal of specified excisable goods from factory to warehouse and warehouse to another warehouse without payment of duty.- In exercise of the powers conferred by sub-rule (1) of rule 20 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance, Department of Revenue notification No. 47/2001 - C.E.(N.T.), dated the 26th June, 2001, published vide 476 (E), dated the 26th J....
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..../2004-C.E. (N.T.) dated 4-9.2004. The implications of withdrawal of warehousing facility are explained below:- (i) Consequent on the withdrawal of the facility of removal of petroleum products without payment of duty for warehousing purposes, the excise duty is liable to be paid by the refineries at the time of removal w.e.f. 6th September, 2004. The refineries are to pay duty on monthly basis. (ii) Since no stocks on or after 6th September, 2004 can remain bonded/ warehoused, the excise duty is liable to be paid on the stocks of petroleum products lying in the warehouses on the midnight of 5th/ 6th September, 2004. The jurisdictional officers should ascertain such stocks of each petroleum product lying in the warehouses and ensure that appropriate duty is paid by the warehouses on such stocks immediately. (iii) Since the warehousing provisions stand withdrawn w.e.f. 6.9.2004, the refineries are required to discharge the excise duty on petroleum products in transit immediately. The jurisdictional officers should ascertain the details of such goods and ensure appropriate duty is paid by the refineries immediately. 2. The assessable value of petrol....
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....e same may be brought to notice of Board immediately along with views and suggestions. 6. Suitable instructions may be issued to all the officers concerned and the trade and industry may also be suitably informed about the above changes. 7. It may, however, be noted that the warehousing facility continues to be extended to specified goods falling under Chapter-29 of First Schedule to Central Excise Tariff Act, 1985 and to specified goods intended for direct supply as stores to a foreign-going vessel or aircraft or to a meal uplift station outside India vide Sl. Nos. 1 and 2 of the new Notification No. 17/2004-C.E. (N.T.), dated 4th September, 2004. 8. Trade and field formations may be informed suitably. 9. Receipt of the circular may be acknowledged. 10. Hindi version shall follow.' Circular No. 581/2001 Circular: 581/18/2001-CX dated 29-Jun-2001 Warehousing for export - Place, class of exporters, conditions and procedures specified under Rule 20(2) of Central Excise (No. 2) Rules, 2001 Circular No. 581/18/2001-CX, dated 29.6.2001 F. No. 209/16/2001-CX.6 Government of India Ministry of Finance (Department of Reven....
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....o. 2) Rules, 2001 read with notifications issued thereunder, backed by twenty five per cent security of the bond amount. 4. Procedure: 4.1 Registration 4.1.1 The exporter shall make a written request along with application for registration under rule 9 to the Commissioner for allowing to establish a export warehouse under this provision. The Commissioner may cause an enquiry to be made in respect of the security of the premise for warehouse indicated by the exporter in the application. If found in order, the Commissioner will accord his approval subject to such directions, terms and manners as he may specify and forward the application to the jurisdictional Superintendent of Central Excise through the jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise (having jurisdiction over the premise) within seven working days of the receipt of the application. 4.1.2 The registration certificate containing registration number will be issued by the jurisdictional Superintendent of Central Excise immediately on receipt. Procedure relating to registration will be same as notified in Notification No.36/2001-Central E....
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....d to as ARE-3) and an invoice (under rule 8 taking into account CT-2 certificate) and follow the procedure specified in Circular No. 579/16/2001-CX dated 26.6.2001 issued under rule 20. The serial number of the corresponding CT-2 shall be mentioned on the top of the each copy of ARE-3. Any nominal variations between the provisional debit indicated in the CT-2 and the actual duty involved in the goods removed as indicated in ARE-3, can be ignored. Immediately on receipt of goods, the provisional debit shall be converted into actual debit on the basis of the details mentioned in ARE-3. 5.4 The officer-in-charge of the warehouse will countersign application and despatch to the Range Office having jurisdiction over the factory / other approved premise of removal within one working day of receipt of the application. He will make suitable entry in his own record accordingly. 5.5 The assessees shall maintain private record (Warehousing Register) containing information relating to details of ARE-3 and invoice, date of warehousing certificate, description of goods received including marks and numbers, quantity, value, amount of duty, details of operation in the warehouse a....
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....tiated. 7.2 The exporter may procure packing or labeling material and bring into the warehouse under the warehousing procedure itself. No duty paid goods will be permitted to be brought into the warehouse. 7.3 Where the process of packing, repacking, labelling or relabelling amounts to manufacture in terms of the provisions of the Central Excise Tariff Act, 1985, its repercussions on the goods permitted for clearance for home consumption shall be determined, and assessment shall be done accordingly. 8. Storage : Goods brought under the cover of each ARE-3 shall be stored separately or proper accountal shall be maintained, till these are exported or diverted for home-consumption. 9. Clearance of goods for export outside India : 9.1 For the export of goods from the warehouse, the procedure relating to preparation of application for export (ARE.1), examination and sealing, acceptance of proof of export etc. shall be governed by notification No. 42/2001-Central Excise (N.T.) dated 26.6.2001 and instructions applicable for this notification. 9.2 The requisite copies of application will be filed with the Assistant Commissione....
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....red from warehouse has not taken place. The demand shall be raised by the Assistant/Deputy Commissioner having jurisdiction over the warehouse (jurisdictional Assistant/Deputy Commissioner) for non-fulfilment of the conditions of bond executed by the exporter. 10. Diversion of goods for home-consumption : 10.1 Goods can be diverted for home-consumption from the warehouse with the permission of the jurisdictional Assistant/Deputy Commissioner. The clearance shall be effected on invoice prepared under rule 8 on payment of duty, interest and any other charges on TR-6 Challans and after making necessary entries in the export warehouse register maintained by the exporter in the warehouse. Credit will be permitted in the Running Bond Account equivalent to the duty involved in the goods so diverted, which shall not exceed amount of duty debited on the basis of ARE-3 on which such goods were received in the warehouse. If entire quantity is not diverted, calculation shall be done on pro-rata basis. 10.2 Goods can be diverted for home-consumption even after the clearance from the warehouse on ARE.1. For cancellation of documents, provisions of notification no. 46/2....
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....tment of Revenue) Central Board of Excise & Customs, New Delhi Subject: Export warehousing facility to petroleum products - amendment in Circular No. 581/18/2001-CX dated 29th June, 2001- regarding. I am directed to say that as you are aware that the facility of removal of petroleum products without payment of duty from the factory of production to a warehouse or from one warehouse to another warehouse has been withdrawn w.e.f 6th September, 2004 vide notification No. 17/2004-CE (N.T.) dated 4th September, 2004. However, the facility of removal of petroleum products without payment of duty for export warehousing continues to be available vide notification No. 46/2001-CE (N.T.) dated 26th June, 2001. Board vide Circular No. 581/18/2001-CX dated 29th June, 2001 has inter alia, specified conditions, procedures, class 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. 2. In sub-para (1) and sub-para (2) of para 2 of the said Circular, Board has specified the categories of exporters to whom the said facility shall be applicable and the places wher....
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....roducts without payment of duty for export warehousing continues to be available vide notification No. 46/2001-CE (N.T.) dated 26th June, 2001. Board vide Circular No. 581/18/2001-CX dated 29thJune, 2001 has inter alia, specified conditions, procedures, class 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. 2. Following the withdrawal of warehousing facility, certain issues have been raised by field formations and the oil companies stating the difficulties being experienced. The issues have been examined by Board. The various issues and the decisions on these are being communicated as below: (i) Issue: The Oil companies, due to logistical reasons, cannot supply the petroleum products under end-use based exemptions (including the supplies of petroleum products to vessels of Indian Navy or Coast Guard), directly to the actual users without routing the goods through the installations created under the previous arrangement. In some cases, the oil installation are dedicated for a particular end user through which supply of petroleum products takes place wherea....
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....fficulties in installing multiple storage tanks (separate for domestic and export clearances) at the site of the airport due to space constraints. Similar problem has also been reported for supply of Bunker Fuel (FO/LDO/HSD) to foreign-going vessels and coastal vessels. Decision: In such cases, ATF cleared for export warehouse may be allowed to be stored in the intermediate storage tanks subject to condition that such intermediate storage tanks are used exclusively for storing export goods. The details of such intermediate storage tanks including their physical location in the concerned installation should be intimated to jurisdictional Central Excise officer. Accordingly, para 6.1 in Circular No. 581/18/2001-CX dated 29th June, 2001 issued for export warehousing is modified as below:- '6.1 Receipt of goods will be governed by the procedure specified under Circular No. 579/16/2001-CX dated 29th June, 2001 issued under rule 20 with the modification that in case of Aviation Turbine Fuel intended for supply of foreign going aircrafts and other petroleum products i.e. FO/LDO/HSD intended for supply as Bunker Fuel to foreign going vessels, the goods may also be received through....
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....itably. 5. Receipt of the Circular may be acknowledged. 6. Hindi version will follow.' 16. The adjudicating authority after considering the above Circulars raised the demand, interest and penalty against the petitioner which was set aside by the Commissioner (Appeals) by observing as under:- '7.1 The Adjudicating Authority in the impugned order held that the domestic warehousing facility was withdrawn for petroleum products vide Notification No. 17/2004-CE(NT) dated 4.9.2004 and the same was explained vide Circular No. 796/29/2004-CX dated 4.9.2004 wherein it was held that consequent upon the withdrawal of warehousing facility, the excise duty is liable to be paid by the refineries at the time of removal w.e.f. 6.9.09. But I find that the said circular was housing essence to domestic warehousing only and not in relation to export warehousing facilities as clarification with regard to export warehousing facility was issued later, vide Circular No.798/31/2004-CX dated 6.9.04, wherein it was held that 'the facility of removal of petroleum products without payment of duty for export warehousing continues to be available vide Notification No. 46/2001-CE(N.T....
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....r account shall be maintained about the receipt and discharge of duty paid and non-duty paid stocks of ATF. It has been further clarified that no storage losses are permitted in the export warehouses/tanks whether intermediate or at AFS including those with such mixed storage. In the instant case, the ATF cleared from the factory was totally for export and hence this clarification is relevant to the present issue. From the clarification given, it is clear that storage losses are not allowed, but the circular is silent on transit loss. Here the Appellants have filed appeal only with respect of the transit loss and not for storage loss, which they accept is not admissible. 7.3. Regarding transit loss, it is observes that as per the Board's instruction vide F.No. 261/6/20/82-CX-8 dated 30.10.85 hold that - '3. Secondly, they may be allowed to transfer non-duty paid of brought in railway wagon tanks, to a banded storage tank and determine the transfer quantity by taking dips in the storage tank before and after the transfer, on conditions that duty on transit shortages in excess of 19% would be paid... Thus the above exemption is still available to petrol....
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.... 1% on such clearances. Since the duty has already been paid by the Appellants in cases where the loss is more than 1%, no duty is recoverable from them in this regard.' 17. The aforesaid observations and findings arrived at by the Commissioner (Appeals) were reversed by the revisional authority by relying upon the Circular No. 804/2005 dated 04.01.2005 observing as under:- '7. On perusal of records, Government observes that M/ s IOC Ltd. cleared petroleum products, Naphtha & ATF without paying of duty from the refinery to bonded storage location under rule 20 of Central Excise Rules, 2002. Adjudicating authority confirmed the duty demand of Rs. 37,71,224/- involved on the goods found short at the storage location. In appeal, Commissioner (Appeals) allowed the appeal and dropped the demand by setting aside the order of original authority. Now applicant department has filed this revision application on the grounds state above. 8. Government observes that the original authority has held that the applicant has violated the condition 2(iii) of the Board's Circular No. 804/1/2005-CX dated 04.01.2005 and hence liable to pay duty in terms of rule 20 (4) of the Cen....
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....emoval of specified petroleum products from the production to export warehouse without payment of duty as stipulated in notification No. 46/2001-CE(NT) has not been withdrawn, and the notification 46/2001-CE(NT) continued to be in existence. 8.4 The Circular No. 804/1/2005-CX dated 04.01.2005 was issued to clarify some issues after withdrawal of warehouse facility of specified petroleum product by way of notification No. 17/2004-CE(NT) dated 06.09.2004. The relevant portion of the said circular dated 04.01.2005. is reproduced as under: 'I am directed to say that as you are aware the facility of removal of specified petroleum products without payment of duty from the factory of production to a warehouse or from one warehouse to another warehouse was withdrawn wef 6 September, 2004. vide notification No 17/2004-CE (NT) dated September 2004 The facility of removal of petroleum products without payment of duty for export warehousing continues to be available vide notification No. 46/2001-CE (NT) dated 26 June 2001 Board vide Circular No 581/18/2001-CX dated 29 June 2001 has interalia, specified conditions procedures, class of exporters and places of warehouses under s....