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TMI Blog2012 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 11B of the Central Excise Act, 1944. In the matter of third claim i.e. for Rs. 32,28,131/-, it was observed that the claim was filed beyond the stipulated period of 1 year. Hence a show cause dated 24-9-09 was issued proposing rejection of the said claim. After due process of adjudication, the Assistant Commissioner of Central Excise rejected the first two claims on common ground of non-filing of original and duplicate copies of ARE-1 and also being time barred and the third one on the basis of being time barred. 3. Being aggrieved with the order of the Adjudicating Authority, the Applicant party filed the appeal before Commissioner (Appeal) who after due consideration of the fact as mentioned therein rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant, party has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following main case grounds:- 4.1 That while passing the impugned order-in-appeal, the Commissioner (Appeals) Central Excise did not consider the moot question involved in the present case i.e. what is the relevant date (date on which the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate claim filed on 22-4-09 in respect of ARE-1 No. 178, 179 and 180 is not hit by limitation under Section 11B of the Central Excise Act, 1944. 4.5 The Commissioner (Appeals) failed to pass a speaking order giving detailed reasoning as to the findings and conclusions. He did not give any reasoning for his finding in para 5 of the order-in-appeal that "I find that the rebate claims of Rs. 54,20,880/- Rs. 38,07,771/- and Rs. 32,28,131/- are not only hit by limitation but........" He did not give any explanation as to how the limitation period has been calculated and in fact, he has passed the impugned order in appeal without stating the "date of export" relevant for computing the limitation period for the purpose of Section 11B of the Central Excise Act, 1944. 4.6 That the show cause notice as well as the order-in-original were bad in law as they were vague. He did not appreciate that in the SCN as well as in the OIO various dates i.e. date ARE-1, date of invoices, date of Bill of lading, date of shipping bill were mentioned, however, they failed to state which of these dates is to be considered as the "date of export" from which the limitation period for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttam Steel Ltd. v. UOI 2003 (158) E.L.T. 274 (Bom.). 4.11 That the excise duty of Rs. 54,20,880/- was not all payable on goods exported as only goods can be exported and not Indian taxes on goods exported. He did not appreciate that by denying rebate claim, the department is trying to withhold the said duty without authority of laws and any amount collected without authority of law has to be refunded by the impugned order-in- appeal by ignoring the following decisions of Supreme Court of India & High Court, Rajasthan which were binding on him : Commissioner of Sales Tax, UP v. Auriaya Chamber of Commerce, Allahabad - 1986 (25) E.L.T. 867 (S.C.) Commissioner v. Suncity Alloys Pvt. Ltd. - 2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.) 4.12 In addition to grounds mentioned under revision application, the applicant submitted some more grounds vide their letter dated 26-5-11 and 26-7-11, with respect to above rebate claims in support of their case, which are as under : (i) That in regard to non-filing of original and duplicate copy of ARE-1, the applicant stated that both the lower authorities have ignored the crucial fact of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of rebate claim. However, the said finding of the Commissioner is very much wrong and not on the basis of record available with the authority as the FIR has been lodged after proper verification of facts of lost on 18-5-09 and claim has been filed on 24-5-09. It is also submitted that it is not necessary that FIR should be filed before the filing of rebate claim. Hence this view taken by the Commissioner (Appeals) is not sustainable in the eyes of law. 4.15 GOI Order No. 267/05 dated 30-6-05 passed by the revisionary authority in the matter of M/s. Bhagirath Textiles Ltd., Nagpur, vide the above judgment it has been decided that rebate/drawback etc. are export-oriented schemes and unduly restricted and technical interpretation of procedure etc. is to be avoided in order not to defeat the very purpose of such schemes which serve as export incentives to boost export and earn foreign exchange and in case the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical breaches. 4.16 That they have filed the rebate claim of Rs. 70,07,684/- with the department on 21-8-08 under which four different ARE-1s i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Commissioner attended the hearing on behalf of the respondent-department and while reiterating facts/merits of the case submitted that there can be double benefit of original/duplicate copies of ARE-I are filed at other place. 6. Government has considered written submission of the applicant and also perused the orders passed by the lower authorities. 7. Government notes that in these three cases of rebate claims, applicant has mainly contested the impugned order-in-appeal on the following grounds : (i) Rebate claims in respect of two ARE-1s No. 16 dated 21-9-08 and 25 dated 21-12-08 have been rejected without assigning any reason inspite of the fact that lower authorities have found the same to be legally admissible. (ii) The rejection by the lower authorities on the point of limitation is not legal and proper as per the statutory provisions because the relevant date for calculation of stipulated period of one year is to be taken from the date on which the ship in which goods are loaded for leaves in India. (iii) The non-submission of original and duplicate copies of ARE-1 form is procedural require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 claim of Rs. 32,38,131/- was rejected on the basis of being time barred only for being filed after stipulated time period of one year from the relevant date. 9. Government takes up the issue of non-submission of duly endorsed (by Central Excise/Customs Authorities) original and duplicate copies of respective ARE-1s (in their original forms). Para 3(b) of the Notification No. 19/04-C.E. (N.T.), dated 6-9-04 issued under Rule 18 of the Central Excise Rules and para 2.1 to 8.4 of the chapter 8 Part-I of the CBEC Manual of Supplementary Instructions clearly stipulate that requirement of submission of ARE-1, original & duplicate copy alongwith rebate claim is an essential requirement. Further, there is no provision for doing away with this requirement in case of goods exported under claim of rebate. As per these statutory provisions the goods shall be exported on the application in Form ARE-1 specified in the annexure to Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and procedures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 policy of the Government and it is in this spirit of this background that Hon'ble Supreme Court in case of Sharif-ud-Din Abdul Gani - AIR 1980 SC (303) & 2003 (156) E.L.T. 168 (Bom.) has observed that distinction between required forms and other declarations of compulsory nature and/or simple technical nature is to be judiciously done. When non-compliance of said requirement leads to any specific/odd consequences then it would be difficult to hold that requirement as non-mandatory. As such there is no force in the plea of the applicant that this lapse should be considered on a procedural lapse of technical nature which is condonable in term of case laws cited by applicant. The Hon'ble Supreme Court in the case of J. Yashoda. v. K. Shobha Rani [2007 (212) E.L.T. 458 (S.C.)] has discussed Section 63, 64 & 65 of Evidence Act, 1872 and therein upheld the High Court view and held that the photo copies cannot be received as secondary evidence In terms of Section 63 of the Act and they o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which the ship carrying load of impugned export goods left India. The exact dates of ships as to when the same left the Indian port are not clear as being disputed by the applicant herein. So, these are to be re-confirmed as per the respective EGMs, Shipping Bill etc. The third rebate claim of Rs. 32,28,131/- was rejected only on the ground of being time barred. But applicant is claiming that ship carrying said export goods left India on 8-6-08 and the rebate claim initially filed on 21-8-08 was resubmitted on 3-6-09 alongwith copy of Shipping Bill. As such, applicant claimed that the rebate claim is not time barred. The said 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. 12. In view of circumstances, Government modifies the impugned orders and directs the original authority to conduct ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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