TMI Blog2013 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon’ble Supreme Court in the case of J. Yashoda v. Shobha Rani 2007 (4) TMI 11 - SUPREME COURT OF INDIA has discussed Sections 63, 64 & 65 of Evidence Act, 1872 and therein upheld the High Court view that the photocopies cannot be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received since the documents in question were admittedly photocopies, there was no possibility of the documents being compared with the originals. Government, therefore holds that non-submission of statutory documents i.e. ARE-1 original and duplicate copy duly endorsed by customs and not following the basic procedure of export goods as discussed above, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty - Rebate claim is not admissible if the original and duplicate copy of ARE-1 is not submitted along with rebate claim. - Decided in favour of the Revenue. - 198/09/2011-RA - 920/2012-CX - Dated:- 23-8-2012 - Shri D.P. Singh, J. Shri R.K. Sharma, Advocate, for the Assessee. None, for the Department. ORDER This revision application has been filed by the applicant Commissioner of Customs and Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the original ARE-1, complete in all respect including authentication by the Customs authority at port of export the most essential requirements both in terms of legal as well as procedural compliance. 4.4 The Commissioner (Appeals) erred in disallowing the appeal against the rebate claim by permitting substitution of the original customs authenticated original ARE-1 with a dubious looking extra copy of ARE-1 even while he neither has cited authority for relaxation of the binding condition nor has he recorded any reasons on behalf of the Claimant as to the reasons for non-availability of the original requisite documents. The applicant has not even come up with any mitigating factor owing to which such condition of the laid down instructions could be relaxed. Such an order of the Commissioner (Appeals) full of infirmity and arbitraries is wholly erroneous and seems to be allowing a claim against a purported export whose authenticity is suspected. Hence, the findings of the jurisdictional Assistant Commissioner and that of the Commissioner (Appeals) deserve to be set aside and recovery of the rebate claim granted erroneously deserved to be recovered. 5. A show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the claim, an opportunity shall be provided to the exporter to explain the case and a reasoned order shall be issued. 8.2 Para 3(b) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002, envisage as under :- 3(b) Presentation of claim for rebate to Central Excise :- (i) Claim of the rebate of duty paid on all excisable goods shall be lodged along with original copy of the application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, the Maritime Commissioner; (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be. Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on these copies of ARE-1 proves the export of goods. In the absence of said original and duplicate ARE-1, rebate sanctioning authority has no chance to compare these documents with triplicate copy of ARE-1 as stipulated under above discussed provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and therefore he cannot satisfy himself of the correctness of the rebate claim. So, submission of original and duplicate ARE-1 duly endorsed by customs establishes the export of duty paid goods and therefore is an essential requirement which cannot be done away with. 8.5 In case of export of goods without payment of duty under bond in terms of Rule 19 of Central Excise Rules 2002, there is a provision under Chapter 7 of C.B.E. C. Excise Manual of Supplementary Instructions (the chapter which relate to procedure/instructions in respect of export under bond without payment of duty) for accepting proof of export on the basis of collateral documentary evidences if original and duplicate copies of ARE-1 are lost. But in case of exports on payment of duty under rebate claim in terms of Rule 18 of the Central Excise Rules, 2002, there is no such provision under relevant Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compared with the originals. Government, therefore holds that non-submission of statutory documents i.e. ARE-1 original and duplicate copy duly endorsed by customs and not following the basic procedure of export goods as discussed above, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty. Government has already held in GOI Orders Nos. 246/2011-CX., dated 17-3-2011, 216/2011-CX., dated 7-3-2011, 835/2011-CX., dated 17-3-2011, 736/2011-CX., dated 13-6-2011, 509/2012-CX., dated 30-4-2012 and 525/2012-CX., dated 30-4-2012 that rebate claim is not admissible if the original and duplicate copy of ARE-1 is not submitted along with rebate claim. 10. In view of above position, Government finds that rebate claim of Rs. 43260/- in respect of ARE-1s No. 09/08-09 (where original ARE-1 Form is not submitted) is not admissible. However, Government notes that department has not raised any such objection about the rebate claim of Rs. 99209/- in respect of ARE-1 No. 332/08-09, dated 5-11-2008. So the rebate claim sanctioned in respect of said ARE-1 No. 332/08-09 is in order and orders of lower authority are upheld to this extent. The impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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