TMI Blog2013 (5) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner itself by which the non-production of the ARE-1 form was not regarded as invalidating the rebate claim and the proceedings were remitted back to the adjudicating authority to decide the case afresh after allowing to the Petitioner an opportunity to produce documents to prove the export of duty paid goods in accordance with the provisions of Rule 18 read with notification dated 6 September 2004 Order No.1754/10-CX dated 20 December 2010 of D.P. Singh, Joint Secretary, Government of India under Section 35 EE of the Central Excise Act 1944 & also placed on the record other orders passed by the revisional authority taking a similar view Garg Tex-O-Fab Pvt. Ltd. (2010 (10) TMI 880 - GOVERNMENT OF INDIA), Hebenkraft – [2001 (3) TMI 124 - GOVERNMENT OF INDIA], Shreeji Colour Chem Industries v. CCE [2007 (10) TMI 523 - CESTAT, AHMEDABAD], Model Buckets & Attachments (P) Ltd. v. CCE (2007 (2) TMI 520 - CESTAT, BANGALORE) and CCE v. TISCO 2003 (2003 (3) TMI 191 - CEGAT, KOLKATA) Thus as in the present case the Petitioner has inter alia relied upon the bills of lading, banker's certificate in regard to the inward remittance of export proceeds and the certification by the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted of the whole of the duty paid on excisable goods falling under the First Schedule of the Central Excise Tariff Act 1985 which are exported to any country other than Nepal and Bhutan. The Central Board of Excise and Customs in the Excise Manual of Supplementary Instructions of 2005 has catalogued in Chapter 8 the procedure governing the sanctioning of a claim for rebate of central excise duty. 5. Under the statutory notification dated 6 September 2004 manufacturerexporters registered under the Central Excise Rules 2002 and merchantexporters who procure and export goods directly from the factory or warehouse can exercise the option of exporting the goods sealed at the place of dispatch by a Central Excise Officer or under a procedure of self-sealing. Under the procedure that is prescribed by the notification, for the purpose of sealing of goods intended for export, at the place of dispatch, the exporter has to present the goods along with four copies of an application in form ARE-I specified in the annexure to the notification, to the Superintendent of Central Excise having jurisdiction over the factory of production or manufacture or the warehouse. The Superintendent or In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the factory of production of export goods or the warehouse; or Maritime Commissioner. 8.2 It shall be essential for the exporter to indicate on the A.R.E. 1 at the time of removal of export goods the office and its complete address with which they intend to file claim of rebate. 8.3 The following documents shall be required for filing claim of rebate: (i) A request on the letterhead of the exporter containing claim of rebate, A.R.E. 1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each A.R.E. 1 and its calculations, (ii) original copy of the A.R.E.1, (iii) invoice issued under rule 11, (iv) self attested copy of shipping Bill, and (v) self attested copy of Bill of Lading. (vi) Disclaimer Certificate (in case where claimant is other than exporter) 8.4 After satisfying himself that the goods cleared for export under the relevant A.R.E.1 applications mentioned in the claim were actually exported, as evident by the original and duplicate copies of A.R.E.1 duly certified by Customs, and that the goods are of 'duty-paid' character as certified on the triplicate copy of A.R.E.1 received from the jurisdictional Superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is that : (i) Sufficient documentary evidence has been produced consisting of (a) the bill of lading; (b) the mate's receipt: (c) bank receipt of the State Bank of India showing the realization of the export proceeds and (d) an endorsement of the customs authorities on the triplicate copy of the ARE- 1 form which would establish that the goods were exported and had a duty paid character; (ii) In order to qualify for the grant of a rebate under Rule 18, the mandatory conditions which are required to be fulfilled are that (a) the goods have been exported; and (b) duty had been paid on the goods. The production of the ARE-1 form in the original and duplicate is a matter of procedure and where the exporter contends that the ARE-1 form has been lost or misplaced, that should not result in the deprivation of the statutory right to claim a rebate subject to the satisfaction of the authority on the production of sufficient documentary material that would establish the identity of the goods exported and the duty paid character of the goods; (iii) As a matter of fact, in several decisions of the Union Government in the revisional jurisdiction as well as in the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure as may be prescribed on the other hand. The notification dated 6 September 2004 that has been issued by the Central Government under Rule 18 prescribes the conditions and limitations for the grant of a rebate and matters of procedure separately. Some of the conditions and limitations are that the excisable goods shall be exported after the payment of duty directly from a factory or warehouse, except as otherwise permitted by the CBEC; that the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as may be allowed by the Commissioner; that the market price of the excisable goods at the time of export is not less than the amount of rebate of duty claimed and that no rebate on duty paid on excisable goods shall be granted where the export of the goods is prohibited under any law for the time being in force. The procedure governing the grant of rebate of central excise duty is specified in the same notification dated 6 September 2004 separately. Broadly speaking the procedure envisages that the exporter has to present four copies of an application in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary Instructions of 2005 is to facilitate the processing of an application for rebate and to enable the authority to be duly satisfied that the two fold requirement of the goods having been exported and of the goods bearing a duty paid character is fulfilled. The procedure cannot be raised to the level of a mandatory requirement. Rule 18 itself makes a distinction between conditions and limitations on the one hand subject to which a rebate can be granted and the procedure governing the grant of a rebate on the other hand. While the conditions and limitations for the grant of rebate are mandatory, matters of procedure are directory. 13. A distinction between those regulatory provisions which are of a substantive character and those which are merely procedural or technical has been made in a judgment of the Supreme Court in Mangalore Chemicals Fertilizers Ltd. v. Deputy Commissioner 1991 (55) E.L.T. 437 (S.C.). The Supreme Court held that the mere fact that a provision is contained in a statutory instruction does not matter one way or the other . The Supreme Court held that non-compliance of a condition which is substantive and fundamental to the policy underlying the gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and which was confirmed in appeal and in revision cannot be faulted. Admittedly even accordingly to the Petitioner the goods came to be exported and the vessel had sailed on 18 April 2008 even before a Let Export Order was passed by the customs authorities. The primary requirement of the identity of the goods exported was therefore, in our view, not fulfilled. In such a case, it cannot be said that a fundamental requirement regarding the export of the goods and of the duty paid character of the goods was satisfied. 16. However, it is evident from the record that the second claim dated 20 March 2009 in the amount of Rs.2.45 lacs which forms the subject matter of the first writ petition and the three claims dated 20 March 2009 in the total amount of Rs.42.97 lacs which form the subject matter of the second writ petition were rejected only on the ground that the Petitioner had not produced the original and the duplicate copy of the ARE-1 form. For the reasons that we have indicated earlier, we hold that the mere non-production of the ARE-1 form would not ipso facto result in the invalidation of the rebate claim. In such a case, it is open to the exporter to demonstrate by the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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