TMI Blog2012 (6) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be filed for making clearances to SEZ, yet the substantial benefit of rebate claim cannot be denied only for this lapse. Government further observes that Customs Officer of SEZ Unit has endorsed on ARE-1 that the goods have been duly received by them. As the duty paid nature of goods and supply the same to SEZ is not under dispute, the rebate on export of duty paid goods under Rule 18 of Central Excise Rules, 2008 is admissible, subject to verification from ARE-1 forms that goods were received in SEZ. Government also notes that, now, the applicant has now submitted copies of relevant BRCs which also proves that impugned goods were exported. - Decided against Revenue. - F. No. 198/194-199/2010-RA - 626-631/2012-CX - Dated:- 11-6-2012 - Shri D.P. Singh, Joint Secretary Shri Pulak Raj Mullick, Advocate and B.B. Gandhi, Manager (Account), for the Assessee. ORDER These revision applications are filed by Commissioner of Central Excise, Meerut-I against the Orders-in-Appeal as detailed in column (3) of table below passed by Commissioner of Central Excise (Appeals), Meerut-I with respect to Orders-in-Original passed by Deputy Commissioner, Central Excise, Meerut-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case of one consignment cleared under ARE-1 No. E/22/08-09, dated 19-5-2008, the party failed to submit any shipped on board certificate or mate receipt showing date of shipment despite repeated requests and therefore it was not ascertainable whether the goods were actually exported and what was the relevant date as per Section 11B of the Central Excise Act, 1944. The amount of rebate of ₹ 49,238/- relating to this consignment was therefore rejected considering that the party failed to prove the export of the goods cleared under ARE-1 (ibid). 2.3 Order-in-Original No. R-171/09, dated 23-10-2009 :- The adjudicating authority held that with respect to rebate claim of ₹ 4,11,932/- involving the goods exported to M/s. Oilfield Warehouse Services P. Ltd. A.C. Jiva International Inc., SEZ, Vishakhapatnam, the patty failed to submit relevant bill of export despite repeated requests. The failure to provide bill of export coupled with failure to submit Bank s certificate for export proceeds realization as corroborative evidence, was held to indicate that the party are not in a position to substantiate their claim that the export in question had actually taken place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. - 2007 (210) E.L.T. 188 (S.C.) has observed that, in fact, the power of remand by the Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the notes to Clause 122 of the said Bill it is stated that Clause 122 seeks to amend Section 35A so as to withdraw the power of the Commissioner (Appeals) to remand matter back to the adjudicating authority for fresh consideration. The Central Board of Excise Customs vide F.No. 275/34/2006-CX.8A, dated 18-2-2010 has also clarified provisions of said section. 4. Show Cause Notices were issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. The department vide their written submission dated 17-4-2012 mainly stated as follow :- 4.1 A rebate claim for export amounting to ₹ 4,03,078/-, was filed on 29-6-2009. The adjudicating authority, sanctioned a part of the claim for ₹ 3,37,525/-, but rejected a part of the claim for ₹ 65,553/-, on the ground that the bill of lading was issued on 1-7-2008: whereas shipped on Board certificate showed it generated on 1-8-2008. The applicants clarified that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and they have warehoused various goods supplied by Nov Sara India Pvt. Ltd., on behalf of M/s. Jiva International Inc. The respondent submitted a copy of this letter to the jurisdictional Divisional Commissioner vide letter dated 31-1-2011. 5. Personal hearing was scheduled in this case on 25-11-2011, 29-2-2012 and 18-4-2012. Personal hearing held on 18-4-2012 was attended by Shri Pulak Raj Mullick, advocate and Shri B.B. Gandhi, Manager (Account) on behalf of the respondent, who stated that Orders-in-Appeal being legal and proper, may be upheld. 6. Government has carefully gone through the relevant case records and perused the impugned Orders-in-Original and Order-in-Appeal. 7. Government notes that the applicant filed total six rebate claims. Out of which the claims mentioned at Sr. No. (1) and (2) of table in Para (1) above, were rejected on the ground of Bill of lading of dated 1-7-2008 for ARE-1, dated 19-7-2008 31-7-2008 are non-submission of some documents. Remaining four rebate claims were rejected on grounds of failure to submit copies of relevant Bills of Export by the applicant. Commissioner (Appeals) allowed all the rebate claims on merit subject to factua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce bill of Export in term of sub-rule (3) of Rule 30 of SEZ Rules, 2006 and Board s Circular No. 29/2006-Cus., dated 27-12-2006. Government observes that the meaning of export entitlement as given in sub-rule (3) of Rule 30 of SEZ Rules, 2006 should be read with sub-rule (5) of the said Rule. In terms of sub-rule (5) of the said Rule, Bill of Export should be filed under the claim of drawback or DEPB, Though Bill of Export is required to be filed for making clearances to SEZ, yet the substantial benefit of rebate claim cannot be denied only for this lapse. Government further observes that Customs Officer of SEZ Unit has endorsed on ARE-1 that the goods have been duly received by them. As the duty paid nature of goods and supply the same to SEZ is not under dispute, the rebate on export of duty paid goods under Rule 18 of Central Excise Rules, 2008 is admissible, subject to verification from ARE-1 forms that goods were received in SEZ. Government also notes that, now, the applicant has now submitted copies of relevant BRCs which also proves that impugned goods were exported. 10. In view of above discussion, Government directs the original authority to sanction the rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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