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2014 (12) TMI 948 - CGOVT - Central ExciseRebate claim - discrepancies in the declared gross weight and net weight in there ARE-1s - shipping Bill was not appended with the rebate claim - appellant did not file Bank realization certificate along with rebate claim - Arrival of FOB value after deduction of freight/insurance/commission - held that:- Government finds that rule 5 only provides for exclusion of cost of transportation in case of goods sold for delivery at a place other than the place of removal. Government notes that there is no mention whatsoever regarding exclusion of commission from FOB value to arrive at transaction value. As such; this- contentiorG of theapplicant_departraeatis C rary to legal position and hence not tenable. There are specific provision in Section 4(3)(d) of the Central Excise Act 1944 and there is logical inference from DGFT's Policy Circular No.51(RE-2008)2004-09 dated 6.1.2009 regarding inclusion of commission in transaction value. As such Government finds no infirmity in finding of Commissioner (Appeals) that rebate is admissible on FOB value (which is arrived at by including commission and excluding freight) in absence of any substantive counter argument of applicant department. Accordingly, the rebate is admissible on such transaction value. On perusal of sample AREs-1 No.614 dated 11.7.12 and ARE-1 N6.757 dated 29.7.12 and relevant shipping bill No.1157499 dated 1.8.12 and 1142621 dated 2.8.12, Government observes that goods covered vide said two sample- AREs-1 have been cleared under physical supervision of central excise authorities and ultimately exported along with goods covered vide 18 other AREs-1, vide above mentioned two shipping bills, as evident from endorsement of custom authorities on part B of said ARE-1. There is no finding of original authority regarding correlation between excise documents and export documents except ambiguity in weight, which has been explained by the respondent as mentioned in para (11) above. Under such circumstances, keeping in mind whole fact of the case, Government finds force in argument of the respondent regarding ambiguity in net weight/gross weight. As such export of duty paid goods stands established. Under such circumstances, Government finds that rebate is admissible for the reasons of substantial compliance of export of duty paid goods. Rebate/drawback etc. are export-oriented schemes. A merely technical interpretation of procedures etc. is to be best avoided, if the substantive fact of export having been made is not in doubt,' a liberal interpretation is to be given in case of any technical lapse. Once a view is taken that the party would have been entitled to the benefit of the notification had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so, had elapsed. In fact, as regards rebate specifically, it is now a title law that the procedural infraction of Notifications, circulars, etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirement. The core aspect or fundamental requirement for rebate is its manufacture and subsequent export. As long as this requirement is met other procedural deviations can be condoned. This view of condoning procedural infractions in favour of actual export having been established has been taken by tribunal / Govt. of India in a catena of orders, including Birla VXL Ltd. [1997 (7) TMI 383 - CEGAT, NEW DELHI], Alfa Garments [1995 (3) TMI 281 - CEGAT, NEW DELHI], T.I. Cycles [1983 (5) TMI 138 - CEGAT, BOMBAY], Atma Tube Products [1998 (5) TMI 98 - CEGAT, NEW DELHI], Creative Mobus [2003 (7) TMI 682 - GOVERNMENT OF INDIA], Ikea Trading India Ltd. [2003 (7) TMI 99 - GOVERNMENT OF INDIA] and a host of other decisions on this issue. - No infirmity in impugned order - Decided against Revenue.
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