TMI Blog2012 (10) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... /2009/RA-CX - 1400/2011-CX - Dated:- 14-10-2011 - Shri D.P. Singh, J. [Order]. The Revision Application is filed by M/s. Varindra Overseas (P) Ltd., Ludhiana, Punjab against the Order-in-Appeal No. 100-C.E./Ldh/09 dated 21-5-2009 passed by the Commissioner of Customs and Central Excise (Appeals) with respect to Order-in-Original No. 11/AC/LDH-III/08-09 dated 10-12-2008 passed by the Assistant Commissioner, Central Excise Division-III. 2. The brief facts of the case are that the Applicants had filed seven rebate claims as a merchant exporter under Section 11B of the Central Excise Act, 1944 in respect of the goods manufactured by M/s. Arora Fabrics Pvt. Ltd., Ludhiana. During scrutiny of the rebate claims filed by the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in facts. The impugned order has been passed in complete disregard to the factual position and the submissions of the Applicant. The Respondent had failed to appreciate the facts that in the instant case goods have been exported. The copies of relevant shipping bills and explicitly show the relevant date of export of goods and also confirm the export of goods. 4.2 It is not the case of department that the goods have been exported without payment of duty as we have enclosed all the export related documents i.e. ER-3 returns, Invoices, Shipping Bills Bill of Lading. It is well settled law that unless export of goods or payment of duties is not disputed, the incentive of rebate cannot be denied for technical deficiencies/lapses. 4.3 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the applicant did not enclose original and duplicate copies of AREs-1 duly endorsed by the Customs. The Commissioner (Appeals) upheld the impugned Order-in-Original on the ground of non-submission of original and duplicate copies of AREs-1, duly endorsed by the Customs. Commissioner (Appeals) rejected the ground of time bar taken by the original authority. 8. Government notes that the applicant failed to submit the original and duplicate ARE-1 duly endorsed by Customs certifying the export of goods, along with the rebate claims and therefore did not comply with the proper procedure as laid down in Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002 for claiming rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if found in order shall allow self clearance or seal each package or the container in the specified manner and endorse each copy of the application (ARE-1s) in token of having such nomination done. The original and duplicate copies of ARE-1 will be handed over to exporter who will present the same before customs. The triplicate copy of application will be sent to the office with whom rebate claim is to be filed. In the absence of main document ARE-1, original duplicate containing certification by Central Excise as well as Customs authorities, it cannot be established that same goods which were cleared from factory were actually exported. The requirement of submission of original and duplicate ARE-1 is to avoid double payment of rebate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 terms 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 Sections 63, 64 65 of Evidence Act, 1872 and therein upheld the High Court view and held that the photocopies cannot be received as secondary evide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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