TMI Blog2013 (7) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the consignment note in Form 3 - A quarterly report has to be submitted to the Zonal Director of Narcotics Control Bureau, when controlled substances are transported from the jurisdiction of one Zonal Director. The controlled substances can be sold to a buyer after establishing his identity and declaration of purpose, for which it is being purchased. Clause 6 lays down the method of labelling of controlled substance for export. The export also requires a ‘No Objection Certificate’ from Central Bureau of Narcotics of Government of India - Applicants had submitted copies of the consignment notes, intimation/returns to Narcotics Control Bureau and Central Bureau of Narcotics - Procedural infractions could not have deprived the applicants of the substantial right of rebate, particularly so when they had kept the Central Excise and NCB department informed at every stage. As per Hon’ble Supreme Court in the case of UOI v. Suksha International – [1989 (1) TMI 3 - SUPREME COURT OF INDIA] has held that an interpretation unduly restricting the scope of beneficial provisions is to be avoided so that it may not take away with one hand what the policy gives with the other. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile deciding the issue observed that the adjudicating authority rejected the claims on the ground that the goods had not been directly exported from a factory or warehouse. The warehouse from which the goods had been exported was a dealer s godown in which duty paid goods were being stored and it was not a warehouse approved under Rule 20 of Central Excise Rules, 2002. Adjudicating Authority further held that the identity/correlation of the goods originally cleared from the manufacturing unit with goods cleared from the godown could not be established and hence the duty paid nature of the goods was not established. Another finding recorded in the order is that the Jurisdictional Superintendent has not supervised/verified the goods. The copies of ARE-1 Numbers 1, 2, 3 all dated 28-3-2007 annexed to the appeal show the signature with name stamps of the Inspector and Superintendent Central Excise 1 Range-I, Kalyan-I Division, Thane-I who have certified the duty payment as per letter of Superintendent Range-II Gajraula (JP Nagar), vide PLA Entry No. 1118 and Cenvat Entry No. 65998. When Jurisdictional Superintendent got the duty payment verified from the originating Range Superintend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds : 3.1 The claimant had not exported the goods directly from the factory of manufacture or warehouse on payment of duty for export. The basic condition of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 that the goods shall be exported after payment of duty directly from the factory of manufacture or warehouse . The claimant had procured the goods cleared from their factory of manufacture for home consumption and subsequently exported it under Dealers Invoices issued from the registered premises at Contractor Building, Ground Floor, 46, R.K. Marg Ballard Estate, Mumbai-4000 38 and goods cleared from their hired godown at Bhiwandi. Therefore, the mandatory condition regarding removal of goods for export under the cover of Excise invoice of manufacturer directly from the factory as required under Rule 18 of Central Excise Rules, 2002, has not been fulfilled by them. The said godown is not an approved godown under Rule 20 of Central Excise Rules, 2002 by the department. A plain reading of the above condition makes it clear that the warehouse referred to in the said condition is one in which excisable goods have been permitted to be stored without payment of duty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are necessary for availing the rebate. Rebate cannot be granted since mandatory conditions stipulated under Notification No. 41/94-C.E. (N.T.) not fulfilled. Further, in case of Ginni Filaments Ltd. [2005 (181) E.L.T. 145 (S.C.)], it was opined by the Apex Court that the notification has to be read on its own terms and conditions therein cannot be ignored merely because its object is to increase state resources . 4. A Show Cause Notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. In this written reply dated 12-4-2012 following submissions were made :- 4.1 The Order-in-Appeal passed by Commissioner (Appeals) may be upheld. 4.2 They submitted copies of following documents which establish the co-relation of goods exported with the goods cleared from factory of manufacture on payment of duty. (a) Letter dated 27-3-2007 from Superintendent of Central Excise, Range-II, Division-A, Mumbai-I to Superintendent of Central Excise, Range-I, Division-Kalyan. Vide the said letter, the Superintendent, Mumbai has requested the Superintendent, Kalyan to allow export of 304 MT of Acetic Anhydride from their declared godown at Bhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CX., dated 30-1-1997. Commissioner (Appeals) after due discussion and examining the ARE-1s held that the impugned goods were of duty paid nature as the identity of goods exported can be established with the goods cleared from factory on the basis of relevant documents. The applicant department has now contended in their revision application that the claimant had not exported the goods directly from the factory of manufacture or warehouse and violated the condition of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as well as did not follow the procedure prescribed in Board s Circular 294/10/97-CX., dated 30-1-1997 as the identity/co-relation of goods and duty paid character thereof could not be established. 9. Government notes that goods have not been exported direct from the factory of manufacture and this factual position is not denied by respondents. In this case it has to be seen whether the procedure laid down in C.B.E. C. Circular No. 294/10/97-CX., dated 30-1-1997 for the cases where goods are exported from a place other than factory of manufacture is complied with or not. In this regard the observation made by Commissioner (Appeals) in his order are as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the quantity received. Sub-clause (6) prohibits movement of controlled substance by transporters without a consignment note. The said consignment note has to be produced wherever and whenever sealing of inlet and outlet of the tankers with tamper proof seal and the description of the said seals has to be entered in the consignment note in Form 3. A quarterly report has to be submitted to the Zonal Director of Narcotics Control Bureau, when controlled substances are transported from the jurisdiction of one Zonal Director to the another Zonal Director. The controlled substances can be sold to a buyer after establishing his identity and declaration of purpose, for which it is being purchased. Clause 6 lays down the method of labelling of controlled substance for export. The export also requires a No Objection Certificate from Central Bureau of Narcotics of Government of India. Any contravention of the order issued under Section 9A of NDPS Act, 1985 with imprisonment which may extend to 10 years and a fine which may extend to one lakh rupees. 5. It is clear from the above, that the movement of Acetic Anhydride is under stringent control. The applicants had submitted copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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