TMI Blog2013 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... apse of technical nature which is condonable in term of case laws cited by applicant. In J. Yashoda v. Shobha Rani [2007 (4) TMI 11 - SUPREME COURT OF INDIA ] it was 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 were admittedly photocopies, there was no possibility of the documents being compared with the originals - 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, 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 – there was no infirmity in the order – Decided against assessee. - F.No. 195/11/2011-RA - Order No. 93/2013-CX - Dated:- 30-1-2013 - Shri D.P. Singh, J. Shri N. Khil P. Kapasi, Proprietor, for the Assessee. ORDER This revision application is filed by the applicant M/s. Enkay Containers, Vadodara against order-in-appeal No. Commr. (A)/423/VDR-II/10, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARE-1 is not submitted, the rebate may be allowed on the basis of other documentary evidences. We rely upon following case in this context :- (i) Hebenkraft reported in 2001 (136) E.L.T. 979 (GOI) (ii) Kansal Knitware v. CCE reported in 2001 (136) E.L.T. 467 (iii) Shri Krishna Pharmaceuticals v. CCE reported in 1988 (36) E.L.T. 190 (CESTAT) (iv) Model Buckets v. CCE reported in 2007 (217) E.L.T. 264 (CESTAT). 4.3 From above ground, it is very clear that rebate should be sanctioned in the absence of ARE-1 with the other documents which we have already submitted in the office of the Assistant Commissioner. If the export is there at the Nil rate of duty, i.e. if export is done under Rule 19 under bond, no duty is payable and when it is under rebate it should not be stopped due to procedural lapse. In our case, ARE-1 is not submitted which is the procedure but other documents has been submitted by us which prove that export has been done. 4.4 Applicant further vide letter dated 13-7-2012 19-12-2012 stated that Jt. D.G.F.T., Mumbai has issued DEPB No. 0310559446 dated 10-2-2010 against the same Shipping Bill and the said evidence should be enough to sanction the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e), the rebate sanctioning authority shall sanction the rebate, in part or full. In case of any reduction or rejection 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the original documents and in case of all other documents, photocopies of the same are admissible. The Customs certification 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contained in C.B.E. C. Excise Manual Supplementary Instructions as discussed above. Whereas instant case relates to export of goods on payment of duty under rebate claim in terms of Rule 18 of CER, 2002 and Chapter 8 of C.B.E. C. Excise Manual does not permit acceptance of any such collateral documentary evidence. So the ratio of said case laws cannot be made applicable to this case. Similarly in the case of Shri Krishna Pharmaceuticals Ltd. at Sl. No. (f), the issue involved was regarding admissibility of exemption under Notification No. 105/80-C.E., dated 19-6-1980 and valuation of goods. As such the facts of all these cited cases are different and rates of said case laws cannot be made applicable to the instant case. 8.8 In view of above position, Government is of considered view that in the absence of original/duplicate copy of ARE-1 duly endorsed by customs, the export of same duty paid goods which were cleared on ARE-1 form from factory of manufacture, cannot be established which is fundamental requirement for sanctioning the rebate claim under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 9. Government not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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