TMI Blog2013 (8) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... ri D.P. Singh, J. Shri R.S. Sharma, Advocate, for the Appellant. Shri Ram Avtar Meena, Supdt. of Central Excise, for the Respondent. ORDER This revision application is filed by Assistant Commissioner of Central Excise Kalol Division on authorization from Commissioner of Central Excise, Ahmedabad-III, against the order-in-appeal No. 321/09 (Ahd.-III)CE/KCG/Commr (A), dated 9-9-2009, passed by Commissioner of Central Excise (Appeals), Ahmedabad-III. M/s. Amira Tanna Industries Pvt. Ltd. (100% EOU), 727-728 Moti Bhoyan Tal Kalol Distt., Gandhinagar are the respondent party in this case. 2. Brief facts of the case are that the applicant was granted the permission to establish private bonded warehouse under Section 58 of the Customs Act, 1962 and was also granted permission for Bond Manufacturing under Section 65 of the Customs Act, 1962. Thus the applicant was accorded the status of 100% EOU for manufacture and export of Hulled Sesame Seeds falling under chapter heading 1207 of 1st Schedule to the Central Excise Tariff Act, 1985. The applicant was granted permission by KSEZ for DTA sale. Accordingly the applicant had made clearances of Hulled Sesame Seeds to Dome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) has rejected the refund claim of the assessee upto Rs. 6,68,575/- as duty is payable on the Sesame seeds when cleared in DTA. (iv) Refund of Rs. 42,581/- pertains to duty paid on waste which was cleared by the assessee, out of which Rs. 5,748/- is hit by limitation as per Section 11B(1) of Central Excise Act, 1944 and Rs. 36,833/- were ordered to be sanctioned but credited to Consumer Welfare Fund as per Section 11B(2) of Central Excise Act, 1944. (v) The order allowed refund of Rs. 18,16,787/-. The refund pertains to goods exported through merchant exporter against form H . 3. Being aggrieved by the impugned order-in-appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 The clearance of these goods in DTA cannot be considered as export of goods as no procedure relating to clearance of goods for export was followed in this case. The goods were not removed by the assessee under ARE-1 and no procedure relating to examination and sealing of goods by the Central Excise Officer or self sealing and self certification was followed. These goods were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same goods as were cleared by the assessee to them on payment of duty. No evidence is available on record on this point. Exported goods being seasame seed, it is all the more difficult to identify them with goods cleared from the assessee to DTA. Commissioner (Appeals) has failed to take into consideration about this aspect of correlation of exported products to the goods cleared in DTA. 3.4 The assessee had himself initially claimed refund on the ground that the goods cleared in DTA were waste/rejection sale of sesame seeds. But the description of the goods in some of the shipping bill is Indian premium quality hulled sesame seeds, purity min 99.95% ; Indian hulled sesame seeds, auto dried, sortex 99.95% packed in new PP bags . Therefore, the goods exported cannot be co-related with goods cleared in DTA. This vital fact has been completely ignored by the Commissioner (Appeals) while holding that the goods cleared by the assessee to DTA have been exported. 3.5 The Commissioner (Appeals) s reliance upon CESTAT s order in the case of Khabros Steel India Ltd. v. CCE, Jaipur, reported in 2002 (141) E.L.T. 257 (Tri.) and Alsa Marine Harvest Ltd. v. CCE, Visakhapatnam, repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 23/2003-C.E., is also not correct. It is admitted position that there is no CVD on Hulled Sesame which means these are non-excisable commodity, the unit in DTA would clear these goods for local sale without payment of duty as there is no CVD. It is quite irrational that a unit situated granted 100% EOU status be placed at loss by asking them to pay duty on clearance of the same goods for domestic sale. 4.4 Moreover, it is evident from the invoices that the duty which we are seeking refund is the amount paid towards for the clearance of rejection/waste of sesame seeds. As per Sr. No. 20 there is no duty on the waste and rejection, Therefore, even otherwise there is no doubt that the duty was paid by us under the mistaken belief and collected by the department without the authority of law. It is well settled legal position that the Government has no right to retain the money collected without the authority of law and the Government is duty bound to return the money so collected to the person from whom it is collected. The provisions of unjust enrichment would not be applicable to the return of the money collected without the authority of law as the said money is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment particulars of triplicate copy of ARE-1 by jurisdictional Central Excise Range Superintendent has not been followed at all. The applicant has claimed that correlation of goods cleared from factory is established with the goods exported as per the details given in Bills, H. Form, shipping bill and bill of lading. Government after examining the copies of said documents, observes that the Central Excise Invoice No. is not given on the shipping bill or bill of fading. Moreover, the description given in Invoice/Bill is hulled Sesame Seed whereas the same is given in shipping bill as Indian Prime quality hulled seeds ... The applicant had claimed initially refund of duty on the ground that the goods cleared in DTA were waste/rejection sale of sesame seeds. Therefore goods exported cannot be correlated with goods cleared in DTA. 9. The Commissioner (Appeals) s reliance upon CESTAT s order in the case of Khabros Steel India Ltd. v. CCE Jaipur, reported in 2002 (141) E.L.T. 257 (Tri.) and Alsa Marine Harvest Ltd. v. CCE, Visakhapatnam, reported in 2003 (158) E.L.T. 741 (Tri.) is also misplaced as in the case of Alsa Marine Harvest Ltd. there was no doubt that the goods clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 3403 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. 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 evidence in terms of Section 63 of the Act and they ought not to have been received since the documents in question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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