Per Dr. S.L. Peeran : Both these appeals raises common question of law and facts pertaining to the same assessee and hence they are taken up together for disposal as per law. By OIO No. 1/05 dated 21.4.05, the Commissioner has rejected the application filed by the appellant seeking revision of central excise duty under Rule 21 with regard to the goods dispatched to the lorry which met with an accident resulting in spillage of 51 pieces of granite slabs meant for export leading it its destruction. As a result of this rejection, the revenue has confirmed the demand of duty by Order-in-Appeal No. 5/06 dated 10.1.06 on the ground that assessee is required to discharge duty on the quantity of polished granite slabs which were destroyed in the accident as their prayer for remission of duty has been rejected by the Commissioner. The appellants contention is that in terms of Rule 21 of CE Rules they are entitled to claim remission if the goods were destroyed due to unavoidable accident at any time before removal of the goods. It is the submission of the assessee that the place of removal has been defined under Section 4 (3) (c) of the Central Excise Act, 1944 which is as under:-

"a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory."

In this connection learned counsel draws our attention to the provisions in Central Sales Tax Act. He refers to Section 5 of the Act which is noted herein below:-

"When is a sale or purchase of goods said to take place in the course of import or export - (1) A sale or purchase of goods shall be deemed to take place in the course of export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the Customs frontiers of India."

He points out that in respect of export goods, place of removal will be only when the documents are presented to the Customs Officers for export. The finding given by the authorities that the place of removal is factory is not correct in respect of export goods as the sale comes into effect only when the documents of title to the goods are presented at the Customs office in the form of presentation of shipping bills. He submits that when clearances are made under bond, are deemed to be under overall customs control. This has been so held by the Tribunal in the case of Sangita Printers & Exporters Vs. CCE, Allahabad, 1993 (74) ELT 182 (T). He also submits that the Apex Court in the case of M.J. Exports Ltd. Vs. CEGAT, 1992 (60) ELT 161 (SC) has explained the expression, for "home consumption" vis-a-vis expression "warehousing". He also refers to the ruling rendered by this Bench in the case of Koeleman India Pvt. Ltd. Vs. CC, Bangalore, 2005 (192) ELT 866 (T-Bang.) which has clearly held that when the goods are damaged during transportation from factory to the port of export, and due to reasons beyond the control of appellants then, it has to be held that there is no diversion for home consumption and demands were set aside. He points out to another ruling of the Mumbai Bench in the case Associated Capsules Pvt. Ltd. Vs. CCE, Pune, 2006-TIOL-1497-CESTAT-Mum. on the same point which is in his favour. He submits that the Revenue's reliance on the Northern Bench reliance in the case of Ginni Filaments Ltd. Vs. CCE, Lucknow, 2005 (188) ELT 45 (Tri.-Del.) is sub-silientio to the provisions of Rule 4 (3). However, Section 4 (3) (c) of the CE Act defines the "place of removal" to be read with Section 5 of the Central Excise Act. Therefore the Single Member Bench ruling in the case of Ginni Filaments has no bearing in the matter.

2. Learned DR relies on the Single Member Bench ruling rendered in the case of Ginni Filaments Ltd.

3. We have considered the submissions and agree with learned counsel on the legal point. The SMB in the case of Ginni Filaments ha