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TMI Blog2015 (3) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... d also on the grounds that the respondents failed to export the goods directly from the factory of manufacturer as prescribed in Board's Circular No.294/10/97-Cx dated 30.01.1997. 3. Being aggrieved by the said Orders-in-Original respondent filed appeals before Commissioner (Appeals) who decided the same in favour of respondents. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicant department has filed these revision applications under section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds. 4.1 The appellate authority at para 7.3 of the impugned order, by relying upon the case laws of (i) Cotfab Exports reported in 2006 (205) ELT 1027 (ii) Modern Process Printer reported at 2006 (204) ELT 632 and Barot Exports reported at 2006 (203) ELT 321, held that the procedural lapses as reasoned by the lower authority while rejecting the claims can be condoned, since the payment of duty has not been doubted and the goods were exported under statutory, documentation. 4.2 It is pertinent to mention that rebate of Central Excise duty paid on the goods exported out of India, is granted in terms of Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record that the said exporter had not submitted the original and duplicate copy of the Central Excise invoices raised by the manufacturer i.e. M/s Essar Oil Ltd., at the time of filing of their claims on 16.12.2009. The adjudicating authority vide deficiency memos dated 18.02.2010 asked the exporter to submit the Central Excise invoices raised by the manufacturer. The said duty paying documents are essential for claiming refund of duty under section 11B of the Central Excise Act, 1944. The said exporter had submitted duplicate copy of Central Excise invoice only on 18.04.2011. Hence, the appellate authority's findings that "the respondent initially filed their, claims within, statutory time limit of one year along with all the relevant documents statutorily required to be submitted", is erroneous. The appellate authority at Para 9.2 of the impugned order observed that the Hon'ble High Court of Gujarat vide order dated 28.06.2011 in SCA No. 15212/2010 filed by M/s Shakti Shipping International, allowed the appeal of the party and set aside the order No.188/09-CX dated 10.07.2009 passed by the Revisionary Authority. In this regard, it is pertinent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable." i. It may be seen from its language itself that this is not a condition but a limitation and it is an enabling provision to authorize the Commissioner of, Customs at the port of shipment to limit or restrict a particular item or items of ship-sores upto certain quantity which he may consider reasonable. It does not require the claimant of rebate to get a certificate from the Commissioner to this effect. The Commissioner may however impose restrictions In this regard wherever he deems it necessary to avoid any misuse. The said provision does not stipulate or lay any condition that a certificate from the Commissioner of Customs will be submitted along with the rebate claim. The adjudicating authority has tried to broaden the scope of the provision by reading between the lines as per his convenience or understanding. ii. Though the Furnace Oil:(Bunker Fuel) broadly falls in the category of Ship Stores, it is not required. for consumption on board by the crew or passengers like other, consumer goods e.g. food, water, drinks, soaps, toiletries etc. It is essentially required for running of the ship and a ship cannot take the bunker fuel more than the Fuel Tank ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal hearing scheduled in this case on 28.11.2013 was attended by Shri Vinod Kumar, Deputy Commissioner on behalf of the applicant department who reiterated the grounds of revision application. Shri Ashok Agrawal, Consultant and Shri Manav Purohit, Consultant attended the hearing on behalf of respondent and reiterated submission made in their reply dated 28.11.2013. 7. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government observes that the respondents rebate claims were rejected by the original authority on the ground that the rebate claims .with all the documents- were-filed after-expiry-of-one: year and also that the respondents failed to follow the procedure as prescribed in Notification No. 19/2004-CE/(NT) dated 06.09.2004 Board's Circular No. 294/10/97-CX dated. 30.01.1997 Commissioner (Appeals) decided the cases in favour of respondents. Now, the applicant department has filed these revision applications on grounds mentioned in para (4) above. 9. The applicant department has challenged the said Order-in-Appeal mainly on the ground, that respondent failed comply the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 19/2004-CE/(NT) dated 06.09.2004. In this regard the respondents contended that the said condition do not stipulate that any certificate from Commissioner of Customs will be submitted along with the rebate claim. They also stated that their fuel supply was less than the fuel tank capacity and they submitted chartering questionnaires 88(Q88) giving details of capacity of tank of ships. Government finds that the furnace oil was supplied as tanker fuel to the vessels. During hearing held on 28.11.2013, Shri Vinod Kumar Deputy Commissioner Central Excise was asked to intimate with 15 days the procedure if any prescribed by Commissioner of Customs on this issue. The applicant department has not bothered to send any reply till date even after lapse of a period more than one month. In this case, the respondent has contended that fuel tank capacities of Vessels MT Neverland and MT Maersk Progress were 2938 MT and 3475 Mt whereas quantities of FO supplied were only 370.08 MTs and 390.01 MTs: respectively. There is no reason to doubt the reasonableness of this quantity of fuel supplied to vessels. As such there is no merit in this objection of department. 10.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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