TMI Blog2014 (12) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical lapse. - Decided against Revenue. - F.No. 198/686/10-RA - 356/14-cx - Dated:- 14-11-2014 - Smt. Archana Pandey Tiwari, Joint Secretary ORDER This revision application has been filed by the applicant Commissioner of Central Excise, Customs and Service Tax, Vapi against the order-in-appeal No. SKSS/189/Vapi/2010 dated 20.09.10 passed by Commissioner of Central Excise, Customs and Service Tax (Appeals) Vapi with respect to orders-in-original No.1450/DC/Rebate/2009-10/Silvasa-III dated 26.03.10 passed by Deputy Commissioner Central Excise and Customs, Division-III, Silvassa. 2. Brief facts of the case are that the respondent M/s Aarti Industries Ltd., (formerly known as M/s Surfactant Specialities Ltd.), Silvassa, had exported their goods without payment of duty after validity date of LUT. Later on they have paid the duty of ₹ 1,34,415/- alongwith interest. Therefore, they have filed rebate claim on 24.11.09. They had not submitted the original and duplicate copy of ARE-1 for the goods exported by them. They stated that the same we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory premises itself by the jurisdictional officer with reference to 5 copies of the ARE is and in token of its examination the officer sign on all copies of the ARE-1s. 4.3.1 In the second stage examination, the goods (condition No. 3(a)(xiii) and 3(a)(xiv) of the said notification) cleared from the factory after examination again, presented to the Custom Officer alongwith Original Duplicate and quadruplicate copies of ARE-1s at the port of export. The Customs officer again examine the goods w.r.t. the said ARE-1s and observe/inspect/examine that the goods are in original packaging original seal is intact, description/specification, numbers / quantity etc. are matching so that the same goods be allowed for export and chances of replacement, short shipment,. inferior Quality goods etc. ruled out. 4.3.2 After the examination the Customs Officer ensures, the loading of the examined goods on the ship the after sailing of the ship the officer make a remarks/certify name of the ship, voyage number, date of sailing of the said ship, shipping bill number and date, mate receipt number and date on the original, duplicate and quadruplicate copies of the ARE-1s. 4.3.3 After the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptable document on the basis of which export could be proved. Therefore, in absence of vital documents the rebate was legally rejected by the adjudicating authority. Commissioner (Appeals) has erred in considering facts in Para 4.2 in as much as that he considered documents produced by the respondent viz. ARE-1s, Mate Receipt, Shipping Bill and Bill of Lading. As discussed above, the respondent had lost the original and duplicate copy of ARE-1s. Therefore, question of consideration of ARE-1 does not arises. The other documents i.e. mate receipt, bill of lading and shipping bill have to be read with reference to the ARE-1 Which is certified by .the Customs Officer because the possibility of short shipment, replacement of goods, replacement of goods by inferior quality, change in the-value-etc. could not be ruled Out. 47 The Commissioner (Appeals) had erred in applying a ratio of judgement in the case of M/s Model Buckets and attachments Pvt. Ltd. vs. CCE, Belagaum and CCE Vs., Kanwal Engg. As reported in 1996 (87) ELT 141 (Tri.) in as much as that these citation as related with clearance of excisable goods without payment of duty in terms of Rule 19 of Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions have been complied with - (a) The goods have been exported directly from the factory (b) The goods have been exported, within 6 .months from the date on which they were cleared from the factory (c) The market-price-of the goods is not less than-the amount of rebate claim. (d) The amount of rebate is not less than ₹ 500/- 5.4 Appeal to the Hon'ble High Court against the relied upon order of Commissioner (Appeals) cannot be a ground for not following the ratio of the judgement. Case laws cited by the respondent are: GSL India Ltd. 2012 (276) ELT 116 Garg Texto-Fab Pvt. Ltd. - 2012 (271) ELT 449 Shreeji Colour Chem Industries 2009 (233) ELT 367 GTC Industries Ltd.--vs.-CCE Bombay II 2000 (123) ELT 765(Tri) In RE . Cotlab Exports 2006 (205) ELT 1027 (GOI) 6. Government of India decided the case vide Revision Order No1132/2012 Cx dated 7.9.2012 and allowed the revision application filed by the applicant. The applicant filed Writ Petition No.582 of 2013 against the aforesaid revision order dated 7.9.12. The Hon'ble High Court vide order dated 17.2.14 remanded this case back to original authority to decide the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined on the basis of collateral evidences where original and duplicate ARE-1 form is not submitted. Government finds that the appellate authority in para 4.2 of impugned order-in-appeal has discussed in details and held that on the basis of collateral evidences, it is established that duty paid goods have been exported. This detailed factual verification by the appellate authority has not been controverted by department on the basis of any substantial documentary evidences. Under such circumstances, Government is of considered opinion that the benefit cannot be denied to the respondents for the-reason of non-submission) of originart1duplicate copies of ARE-1? 11. Government finds that the applicant department vide their letter dated 10.9.2014 has also contended that the goods were not cleared under valid LUT1. Government notes that the department has not contended this issue in the impugned revision application. Hence, the issue which has not been contended in original revision application, cannot be entertained at this stage. 12. In this regard, Govt. further observes that rebate/drawback etc. are export-oriented schemes. A merely technical interpretation of procedures et ..... X X X X Extracts X X X X X X X X Extracts X X X X
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