TaxTMI 
TaxTMI 
2026 (7) TMI 7
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....ief facts are that, the petitioner is a company engaged in the business of manufacturing excisable goods, i.e. Metallurgical Coke (hereinafter referred as 'Coke' for short). The petitioner received an order for export of about 50,000 Metric Tons (hereinafter referred to as 'MT' for short) of coke from Noble Resources PTE Ltd., Singapore. Accordingly, the petitioner arranged for the export cargo for the purpose of shipment from its unit / warehouse, between 02.04.2011 and 13.05.2011. The petitioner transported about 51,294.800 MT of Coke towards Mundra Port for onward shipment. 4.1. It is the case of the petitioner that, the Surveyor was supervising the transportation measured the extent of moisture in respect of quantities loaded in each of the trucks and prepared a daily truck receiving report at Mundra Port. It appears that, thereafter the goods were measured at the port which weighed 51,177.110 MT, and hence there was a difference of 117.690 MT, on account of handling loss, between the stage of loading the cargo at the factory and at the time of cargo which is unloaded and stored at the port. 4.2. Accordingly, the petitioner prepared ARE-1 for removing the excisable goods ....
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.....05.2016, which has compelled the petitioner to file the present writ-petition. SUBMISSIONS ON BEHALF OF THE PETITIONER: 5. Learned advocate Ms. Sangeeta Pahwa has submitted that the impugned orders are required to be quashed and set aside, since the respondents have failed to notice the nature of the goods, which were metallurgical coke (coke), which has moisture in it and the petitioner is entitled to the rebate on the entire quantity of 51294.800 MT as per the provision of Rule-18 of the Rules. 5.1. She has submitted that it is not the case of the respondents that there was diversion of any quantity of the goods which were removed from the factory premises for the purpose of export and the entire quantity which was received at the Port is exported. However, the weight of the goods in question got reduced due to loss of moisture content from the factory premises till the goods were placed at the Port for the purpose of export. 5.2. She has submitted that the Surveyor, who was overseeing the transport of the goods issued a Certificate on 14.09.2011 mentioning that total quantity of Coke was of 51178.110 MT, during the period from 02.04.2011 to 13.05.2011 and the entire....
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....eclared in the shipping bills, the larger quantity or the weight of the goods which was recorded at the factory premises of the petitioner cannot be considered for processing the rebate. 6.2. In support of her submissions, she has placed reliance on the decision of the Supreme Court in the case of Union of India v. Rajindra Dyeing and Printing Mills Limited, (2004) 10 SCC 187. She has also placed reliance on the Division Bench judgment of this Court in the case of Welspun Corporation Limited v. Union of India & Ors., 2013 SCC Online Guj 1692. Thus, it is urged that the Petition may not be entertained. ANALYSIS AND OPINION: 7. The established facts from the pleadings and records are that, petitioner is engaged in the business of export of metallurgical coke and it exported the same on various dates. The details of exported metallurgical coke as specified in all the four petitions from 10.08.2011 to 14.10.2011 is as below: SCA No OIO No. Good Cleared from Factory Good Exported Difference Rebate amount Not allowed 15459/2016 1261/2011-12 dated 15.11.2011 (Page No. 45) 25120.70 MT 24999.950 MT 120.75 MT Rs. 1,27,504/- 14518/2018 1726/2....
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.... grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." 7.5. A plain and simple reading and ingredients of Rule-18 of the Rules, 2002 clarifies that the rebate of duty is intrinsically connected with the export of goods and the amount of rebate is to be fixed by the Notification issued by the Central Government. The Explanation under Rule-18 of the Rules, 2002 is relevant to fix the rebate of duty paid on the excisable goods. The explanation clarifies the term-'export' and it categorically stipulates that for the purpose of Rule-18, 'export' means taking goods out of India to a place outside India and includes shipment of goods as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. Thus, the export of goods out of India to a place outside India is a quintessential feature for deciding the rebate of duty under Rule-18 of the Rules, 2002. Thus, a combined reading of the constituent of Rule-18 of the....
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....s are in appeal. 3. "Drawback" is defined by Rule 2(a) of the said Rules. Drawback is available to "goods manufactured in India and exported". For the purposes of the Rules, "export" is defined to mean, "taking out of India to a place outside India ...". 4. Learned counsel for the appellants contends that, in the instant case, there was no export as contemplated by the said Rules inasmuch as the said cargo had not been taken out of India to a place out of India; in fact, the vessel had sunk and the said cargo was destroyed within the territorial waters of India. Our attention was drawn to the judgment of this Court in Collector Of Customs, Calcutta v. Sun Industries . 1988 Supp SCC 342, (1988) 35 ELT 241. This was a case where goods had been loaded on to a vessel in India and the vessel had sunk after it moved out of the territorial waters. This Court said: (ELT pp. 243-44, para 6) "When the ship got clearance and moved out of the territorial waters the export was complete. ... But the expression 'taking out to a place outside India' would also mean a place in high seas. It is beyond the territorial waters of India. High seas would also mean a place outsi....