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TMI Blog2014 (12) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... of medicaments under cover of ARE-1 No.57/2005-06 dated 29th October, 2005, on payment of the Central Excise duty amounting to Rs. 10,70,353/- under Central Excise invoice no.57 dated 29th October, 2005. The petitioners filed an application claiming rebate of the Central Excise duty paid on the exported goods. It was the case of the petitioners that when they lodged their claim for refund, they intimated the department that they have lost/misplaced the original and duplicate copy of ARE-1. Since that was misplaced, the same could not be filed with the rebate claim. However, collateral/ contemporaneous documents to support the rebate claim, were forwarded. The complaint is that the requisite proof of export was on record, still the rebate claim has been rejected. The petitioners pointed out that they received a show cause notice and which has been styled as a deficiency memo cum show cause notice proposing rejection of the rebate claim on the alleged ground that the petitioners failed to submit original and duplicate copies of ARE-1. The reply was given to this show cause notice but eventually the petitioners were served with the order of rejection styled as Order-In-Original dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. With the assistance of the learned counsel appearing for both sides, we have perused the Writ Petition and all Annexures thereto. We have perused both orders. The Commissioner of Income Tax (Appeals) has referred to the arguments of the petitioners that in the instant case, the original and duplicate copies of ARE-1 were lost after export of the consignment. A police complaint was also lodged by the petitioners. The documents could not be recovered. The Commissioner of Income Tax (Appeals) has referred to the order of the lower authority rejecting the claim only on the ground that the documents, namely, ARE-1 are not placed on record. He took the view that the condition of submission of original as well as duplicate copies of this form is not mandatory but directory. However, the Commissioner of Income Tax (Appeals) has referred to the procedure prescribed by a Notification that envisages handing over of original and quadruplicate copies of the ARE-1. These are handed over to the exporter by the office of the customs after completion of export procedure. A duplicate copy has to be sent by it to the Rebate Sanctioning Authority either by post or through the exporter. The triplica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting on strict compliance therewith. If there is material on record which shows compliance with such procedural requirement as furnishing of ARE-1 form in original or duplicate and there is other proof of exports of the goods, then, insistence on compliance with the filing of original or duplicate ARE-1 was totally uncalled for and unjustified. Precisely, the Division Bench of this Court held this in UM Cables Ltd. (supra). The judgment in the field and delivered on 24th October, 2013 was not available and possibly that could be the justification for the view taken by the revisional authority. However, the Division Bench has held as under:- '10. Rule 18 of the Central Excise Rules 2002 empowers the Central Government by a notification to grant a rebate of duty paid on excisable goods or on materials used in the manufacture or processing of such goods, where the goods are exported. The rebate under Rule 18 shall be subject to such conditions or limitations, if any, and the fulfillment of such procedure as may be specified in the notification. Rule 18, it must be noted at the outset, makes a clear distinction between matters which govern the conditions or limitations subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter and the triplicate received from the central excise officer. 11. The Manual of Instructions that has been issued by the CBEC specifies the documents which are required for filing a claim for rebate. Among them is the original copy of the ARE-1, the invoice and self attested copies of the shipping bill and the bill of lading. Paragraph 8.4 specifies that the rebate sanctioning authority has to satisfy himself in respect of essentially two requirements. The first requirement is that the goods cleared for export under the relevant ARE-1 applications were actually exported as evident from the original and duplicate copies of the ARE-1 form duly certified by customs. The second is that the goods are of a duty paid character as certified on the triplicate copy of the ARE-1 form received from the jurisdictional Superintendent of Central Excise. The object and purpose underlying the procedure which has been specified is to enable the authority to duly satisfy itself that the rebate of central excise duty is sought to be claimed in respect of goods which were exported and that the goods which were exported were of a duty paid character. 12. The procedure which has been laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effect inter alia that duty has been paid on the goods and that the goods have been examined. Part B contains a certification by the officer of the customs of the shipment of the goods under his supervision.' 11. In view of this authoritative pronouncement of the Division Bench of this Court and nothing contrary thereto being pointed out, we are of the opinion that the order passed by the Revisional authority is unsustainable. It is manifestly illegal and erroneous. It is also vitiated by a non-application of mind to the vital materials, namely, the shipping bills and which contain the endorsement necessary for recording a finding that the goods were indeed exported by the petitioners. The date of the ARE-1 has also been mentioned there with other details. In such circumstances, the view taken by the revisional authority cannot be sustained. The Writ Petition is allowed. The order passed, namely, Order In Original and which is confirmed by the revisional authority on 16th August, 2011 are both quashed and set aside. The order of the Commissioner of Income Tax (Appeals) dated 14th September, 2009 is restored. The Writ Petition is allowed in these terms. Rule made absolute ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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