TMI Blog2012 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... icant claimed that the rebate claim is not time barred - claim of applicant is required to be verified from the relevant documents. If the relevant date, on verification is confirmed as 8-6-08, the rebate claim will be sanctioned to the applicant in accordance with law - original authority directed to conduct necessary verification - F. Nos. 195/661-663/2010-RA-CX - 1245-1247/2011-CX - Dated:- 28-9-2011 - Shri D.P. Singh, J. REPRESENTED BY : Shri R.K. Sharma, Sr. Counsel, for the Assessee. Shri R.C. Rigzin, Additional Commissioner, for the Department. [Order]. These revision applications have been filed by M/s. Bajaj Electricals Ltd., Pune against the orders-in-appeal No. P-III/VM/87-89/10 dated 3-5-10 passed by the Commissioner (Appeals-Ill) Central Excise, Pune -III. 2. Brief facts of the cases are that the applicant is engaged in the manufacture of excisable goods viz. Transmission Line Tower Parts, High Mast Shafts, Lightening Poles falling under Chapter 7308.20.20, 7308.90.90 and 7308.90.90 respectively. They exported their finished goods through Merchant Exporter M/s. Angelique International under ARE-1s and filed three rebate claims for Rs. (i) 54,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 are exported in different consignments and consequently involves more than one shipping bill, the original copy of ARE-1 is given to the exporter after all the goods cleared under the ARE-1 are exported. Consequently, in such cases, there will be more than one dates endorsed by the customs officer on the ARE-1. In such cases, the date which is latest in point of time shall be considered as the date of export for the purpose of calculating limitation period for filing rebate claim vide Section 11B of the Central Excise Act, 1944. The CCE(A) ignored that for filing rebate claim by the applicant, ARE-1 with the endorsement(s) of custom officer is a must as a proof of export and the exporter gets the original copy of the ARE-1 only after the customs officer endorses the ARE-1 subsequent to export of all the goods covered under the ARE-1. 4.4 That the goods cleared under ARE-1 No. 178, 179 180 were exported in different consignments for which there are more than one shipping bill and there are different dates endorsed by the customs officer on the ARE-1. Thus, he should have considered the date which is latest in point of time as the date of export. He failed to observe that in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating limitation under Section 11B of the Central Excise Act, 1944 has to be calculated from the Date of printing of shipping Bill as copy of shipping bill is mandatory document for filing rebate claims. If the rebate claim is not supported by the copies of relevant shipping bills, the refund claim will be considered as incomplete and will not be accepted by the Central Excise Department. He did not appreciate that unless it is printed by Customs Department assessee cannot submit the copy of the same and further submit the rebate claim. The CCE (A) failed to consider and appreciate the fact that the delay of 9 to 61 days i.e. from date of shipment (20-4-08 to 9-5-08) till date of printing of Shipping bill (29-4-09 to 25-6-08) with respect to ARE-1 No. 178, 179 180 is delay on account of Customs Department, for which applicants cannot be held responsible and denied the rebate claim. They relied upon the decision of Hon ble High Court in case of Cosmonaut Chemicals v. UOI - 2009 (233) E.L.T. 46 (Guj.) 4.10 That even if it is assumed that there is delay in filing rebate claim, the delay is a procedural lapse on the basis of which substantive benefit of rebate cannot be denied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has himself allowed the rebate claim to the assessee who had even not prepared ARE-1s or ATR-2s at all for the exports. However, in the applicant case atleast original triplicate copy of ARE-1 and Xerox copy of original and duplicate ARE-1 is available on record. They relied upon the judgements in the cases of : CCE, Bhopal - 2006 (205) E.L.T. 1093 (GOI) CCE, Ahmedabad v. Prananta Foods. Shreeji Colours Chemicals Industries v. CC, Vadodara - 2009 (233) E.L.T. 367 (Tri. - Ahmd.) (iv) That both the lower authorities have not denied the fact of clearance of goods from factory, duty paid nature of export goods and subsequent its exports. Hence, when the core aspect of Rule 18 of Central Excise Rules, 2002 is completed by the applicant, the duty paid on the exported goods should be refunded. The applicant relied upon the following judgment in the case of UOI v. Suksha International Nutan Gems Anr. - 1989 (39) E.L.T. 503 (S.C.) in support of the view taken above. 4.13 That Commissioner (Appeals) has taken a view that the FIR has been lodged after filing of rebate claim. However, the said finding of the Commissioner is very much wrong an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state - 2001 (134) E.L.T. 116 (Tri.-Kol.) M/s. Angiplast Pvt. Ltd. v. CCE, Ahmedabad [2010 (19) S.T.R. 838 (Tri.-Ahmd.) CCE, Delhi-I v. Arya Export and Industries - 2005 (192) E.L.T. 89 (Del.) Sonal Garments (I) Pvt. Ltd. 4.17 In the present case, the goods were shipped on 6-6-08 as evident from the certification given by the Customs Department on Part-B of ARE-1 No. 193 and 194. Hence the relevant date in the present claim is 6-6-08 and the applicant has to file the claim on or before 6-6-09 (after one year from the relevant date). However, the applicant has filed the claim on 3-6-09 i.e. three days before the expiry of one year from the relevant date. The applicant relied upon the following decision in support of their view taken above : UOI v. Suksha International Nutan Gems Anr. - 1989 (39) E.L.T. 503 (S.C.) 5. The case listed for personal hearing on 27-7-11 25-8-11 was attended by Shri R.K. Sharma, Sr. Counsel on behalf of the Applicant who re iterated the facts and ground of the Revision Application. Shri R.C. Rigzin, Additional Commissioner attended the hearing on behalf of the respondent-department and while reiterating facts/merits of the case sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner (Appeals) in respect of this claim was non-submission of original and duplicate copies of ARE-1. Further, on perusal of para 2 of the order-in-original No. 476/Refund/P-V/11/C.Ex/09-10 dated 24-11-09, it has been mentioned that the applicant has filed original and duplicate copies of ARE-1 No. 16 dated 21-9-08 25 dated 21-12-08 and in all rest of six other rebate claims only Xerox copies were filed. The total rebate claims of all the 8 ARE-1s was also rejected on account of non-submission of original and duplicate copies of respective ARE-1s and for being time barred as well in spite of the fact that para 8 of this order-in-original clearly states that the rebate application except ARE-1s No. 16 dated 21-9-08 25 dated 21-12-08 is filed after completion of stipulated time period of one year. Thus Government observes that the rebate claim in respect of ARE-1 No. 16/21-9-08 25/21-12-08 was accompanied by original, duplicate copies of ARE-1 and filed within time limit but still it was rejected. Rebate claim of Rs. 54,20,880/- and 38,07,717/- have been rejected due to time bar and non-submission of original and duplicate copies of respective ARE-1s. Rebate cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments are accepted. Since, rebate claim can be filed either by manufacturer or merchant exporter with Maritime Commissioner or jurisdictional Assistant Commissioner, Central Excise, so there can be a chance of filing duplicate claim, if claim is accepted without original and duplicate ARE-1. Moreover, in case of export of goods under bond in terms of Rule 19 of Central Excise Rules, 2002, there is a provision under Chapter 7 of CBEC Excise Manual on Supplementary Instructions for accepting proof of export on the basis of collateral evidence if original/duplicate ARE-1 is missing. But in case of exports on payment of duty under rebate claim in terms of Rule 18 of Central Excise Rules, 2002, there is no such provision under relevant Chapter 8 of exports under claim rebate of duty , of CBEC Excise Manual on Supplementary Instructions. 10. From above, Government is of the opinion that nature of above requirement is a statutory condition. The submission of application for removal of export goods in ARE-I form is must because such leniencies lead to possible fraud of claiming an alternatively available benefit which may lead to additional/double benefits. This has never been the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rebate claim herein. In this regard, the statutory provisions of Section 11B(1) and 11B(5) of Central Excise Act, 1944 are as under : 11.1 Section 11B : Claim of refund of duty. - (1) Any person claiming refund of duty of excise may make an application for refund of such duty to the Assistant Commissioner Central Excise Deputy Commissioner of Central Excise before expiry of one year from the relevant date .. 11.2 Section 11B (5) - Explanation (A) : Refund includes rebate of duty of excise on excisable goods exported out of India or excisable materials used in the manufacture of such goods. 11.3 Section 11B(5) - Explanation (B) : relevant date means - (a) in case of goods exported out of India where a refund of excise duty is available in respect of goods themselves or as the case may be, the excisable materials used in the manufacture of such goods - (i) if the goods are exported by Sea or Air, the date on which the ship or aircraft in which such goods are loaded leaves India, or (ii) (iii) 11.4 In view of above. Government notes that the time limitation period of one year stipulated under Section 11B(l) is to be computed from the relevant date on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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