TMI Blog2014 (3) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish that the duty paid goods cleared from factory of manufacturer were have actually been exported in impugned case. In view of above, Government concurs with detailed findings of Commissioner (Appeals) and hence, finds no reason to interfere with the same. Government finds that rebate of central excise duty is a beneficial legislation and the same is subjected to fulfilment of certain condition. Government finds support from the observations of Hon’ble Supreme Court in the case of M/s. ITC Ltd. v. CCE reported as [2004 (9) TMI 103 - SUPREME COURT OF INDIA ], and M/s. Paper Products v. CCE reported as [1999 (8) TMI 70 - SUPREME COURT OF INDIA ] that the simple and plain meaning of the wordings of statute are to be strictly adhered to. - Decided against assessee - F. No. 195/1014/2011-RA - 98/2014-CX - Dated:- 26-3-2014 - Shri D.P. Singh, Joint Secretary Shri Keyur Shah, Senior Manager (PWC), for the Assessee. None, for the Department. ORDER This revision application is filed by the applicant M/s. Herbalife International India Pvt. Ltd., Bangalore against the order-in-appeal No. M-I/RKS/140/2011, dated 13-7-2011 passed by the Commissioner of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 20, 42, 52 53 of Dominion Pharmaceuticals were not traceable and promised to submit the affidavit. (iv) The assessable value of the goods exported was arrived at by deducting 35% from the M.R.P., but the export value of the subject goods was calculated at manufacturing cost plus the profit. (v) No appeal was filed against the order of classification of the product. (vi) Copy of the mate receipt was enclosed. (vii) Copy of B.R.C. was enclosed. (viii) Copy of audited accounts for the year ending 31-3-2001 was submitted. 2.2 The Deputy Commissioner, Central Excise, Taloja Division, Mumbai-VII Commissionerate vide letter dated 19-8-2002, sent the rebate claim file with copy of correspondence letters to Maritime Commissionerate, Mumbai, as the ARE-1 was addressed to Maritime Commissioner, Central Excise, Mumbai. The Deputy Commissioner, Central Excise, Taloja Division, vide said letter dated 19-8-2002, informed the discrepancies noticed during the scrutiny of claim. 2.3 It was also informed by the Deputy Commissioner, Central Excise, Taloja Division that reference were made to Custom House, Nhava Sheva, to verity the genuineness of the export documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts manufactured by the manufacturer. (v) The goods covered under each invoices do not match with the Annexure to ARE-1 (vi) Letter from jurisdictional Range authorities certifying that product Thermojetic Formula I Dutch Chocolate is same as - Thermogetic Formula I Chocolate. (vii) The B.R.C. do not give any reference to the Shipping Bill, for which the proceeds of export are realized. (viii) The Duty payment certificate in respect of Invoice Nos. 26, dated 12-5-2000 for ₹ 12,55,219, No. 53, dated 13-6-2000 for ₹ 4,53,709/-, No. 52, dated 6-6-2000 for ₹ 12,55,219, No. 58, dated 15-6-2000 for ₹ 5,34,758/- and No. 50, dated 14-6-2000 for ₹ 6,41,710/-. (ix) Declaration furnished is addressed to Assistant Commissioner, Belapur and not to Maritime Commissioner. (x) It appeared that goods were originally cleared for home consumption and subsequently transferred to overseas buyer on hypothetical price, wherein P.M.V. value was very high as compared to F.O.B. value. 2.7 A show cause notice vide F. No. V(15)Reb/Ch 29/2003/3987, dated 22-9-2005, was therefore issued to the applicant for the aforesaid discrepancies. 2.8 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted by the Commissioner, Bangalore on 19-11-2001, subject to the conditions that only those goods which were specified by the applicants in the annexures to their letter 1-8-2001 are exported and that the goods should be verified by the jurisdictional Range Superintendent at the premises at Taloja and procedure specified in Board s Circular No. 294/10/97, dated 30-1-1997 should be followed. (ii) that the Range Superintendent s verification report is dated 24-10-2001, which is much before the permission granted by the Commissioner, Bangalore and there was no subsequent verification report issued in pursuance to the permission granted by the Commissioner, Bangalore. Further, the list of invoice as per Annexure to the letter dated 1-8-2001 are not on record and hence it is not possible to confirm/compare the identity of goods permitted for export by the Commissioner. (iii) that the Range Superintendent, Jigani Range, Bangalore, in-charge of M/s. Dominion Pharma had abstained from certifying the triplicate copy of the ARE-1, dated 22-1-2002, and informed vide letter O.C. No. 467/02, dated 22-8-2002, that the duty payment particulars in respect of Invoice Nos. 13, 20, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. and M/s. Dominion Pharmaceutical Pvt. Ltd. on payment of duty. Out of the goods procured, the applicant exported certain quantity of goods for which rebate claim has been filed and the balance quantity was cleared in the domestic market. 4.2 Further, the fact that the above goods have in fact been exported is also not in doubt and can be established through the following documentary evidences : (a) Export Invoice No. HRBL/HRBL/02/01, dated 22-1-2002 (duly certified by the Assistant Commissioner of Customs) amounting to USD 3,21,894.74 issued by the applicant to Herbalife International of America Inc. for export of 1,27,386 units of goods. (b) Copy of duly certified Shipping Bill No. 520414, dated 24-1-2002 evidencing export of 127,386 units of goods. (c) Packing list accompanying the export goods mentioning the description of goods and the corresponding quantities. (d) ARE-I No. 1/2002, dated 22-1-2002 evidencing export of 127386 units (87.66 tons) of goods. (e) Mate Receipt issued by Samrat Shipping Logistics Pvt. Ltd. evidencing delivery of goods on Board Indamex Nhava Sheva 2104. (f) Bill of Lading bearing No. CCXLSAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARE-I No. 01/2002, dated 22-1-2002. However, the Commissioner (Appeals) has not pointed out any specific discrepancy. The applicant submits that the goods received from Bangalore were never reopened and re-packed and there has been no discrepancy between the export invoice, packing list and the export documentation and in this regard a correlation statement of the quantity of goods exported is enclosed herewith as Exhibit AA. Further, it is humbly submitted that the Commissioner (Appeals) has failed to take cognizance of the fact that the entire quantity received from the manufacturer under Central Excise Invoices was not exported but only part quantity was exported, which can be easily co-related. However, part quantity (i.e. the balance) was cleared by the applicant in the domestic market and rebate has been claimed by the applicant only on the quantity of goods exported. 4.5 Further, the Range Superintendent, Taloja, Mumbai, in his verification report dated 24-10-2004 has clearly held that the goods were clearly identified with their respective invoices and were in original factory packed condition. Therefore, the allegation by the Commissioner (Appeals) that the goods clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion Pharmaceuticals Pvt. Ltd.) respectively had applied for seeking extension of time to export the goods beyond the period of six months from the date on which they were cleared from the manufacturer s premise. The Commissioner of Central Excise, Bangalore-I Commissionerate vide its letter dated 19-11-2001 granted the permission to export the goods beyond the period of six months subject to the fulfilment of conditions prescribed therein. 4.9 In context of the above, the applicant humbly submits that even though the annexure to letter dated 1-8-2001 were not signed, there is a clear mention of the Annexure attached as well as the corresponding amounts in the letter itself which was duly signed and which is not in dispute. Therefore, when the amounts and the quantities mentioned in the letter match with the amounts and quantity as mentioned in the ARE-1 and other export documents, the allegation by the Commissioner (Appeals) that the export goods cannot be correlated with the goods for which extension has been sought is nothing but arbitrary and propounded just to deny the benefit of rebate to the applicant. 4.10 The Commissioner (Appeals) at Paras 31 and 34 of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough PLA and debited through MODVAT credit. The List of invoices include Invoice Nos. 13, 20, 29 and 42. In light of the above documentary evidence, it is clear that duty was paid on Invoice Nos. 13, 20, 29 and 42 and therefore, Range Superintendent, Jigani Range was not justified in abstaining himself from certifying the triplicate copy of the ARE-1, dated 22-1-2002 when duty had been paid on all the invoices. 4.14 Without prejudice to the above and assuming for the sake for argument, without accepting the same, that the observations made by the ld. Commissioner (Appeals) are right and the claim is liable to be rejected it is apparent that claim filed by the applicant is being rejected merely on procedural, grounds such as non-signing of documents or annexures. The Commissioner (Appeals) has erred grossly in not considering the fact that the core aspect or fundamental requirement for rebate is the manufacture of goods, the payment of duty on the same and its subsequent export, which in the present case is beyond any doubt. The Hon ble Courts in a plethora of judgments have held that rebate is a beneficial piece of legislation with a view to promote exports and therefore the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were manufactured by M/s. Dominion Pharmaceuticals Pvt. Ltd., Bangalore and M/s. Dominion Pharma Chemicals Industries Ltd., Bangalore. As such, the goods were not exported directly from factory of manufacturer and export of such goods are governed by provision of Board s Circular No. 294/10/97-CX, dated 30-1-1997. 8.1 The procedure prescribed in Paras 8, 8.1 to 8.6 of said circular is as under : 8. However, in case of future exports [including the export as shipstores], to avail the aforesaid waiver from the condition of direct exports from the factory/warehouse, the exporters will be required to follow the factory/warehouse, the exporters will be required to follow the procedure prescribed in Circular No. 2/75, dated 22-1-1975 [reiterated in Circular No. 18/92, dated 18-12-1992], which is reiterated below with certain modifications :- 8.1 An exporter, (including a manufacturer-exporter) desiring to export duty paid excisable goods (capable of being clearly identified) which are in original factory packed condition/not processed in any manner after being cleared from the factory stored outside the place of manufacturer should make an application in writing to the Superint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods had been originally cleared on payment of duty is situated. That Superintendent will requisition the relevant invoice/duty paying document which the manufacturer shall handover to the Superintendent promptly under proper receipt, and the Superintendent will carry out necessary verification, and certify the correctness of duty payment on both triplicate quadruplicate copies of AR-4. He will also endorse on the reverse of manufacturers invoice GOODS EXPORTED - AR-4 VERIFIED , (and return it to the manufacturer under proper receipt.) He will forward the triplicate copy to the Maritime Commissioner of the port from where the goods were/are exported. The quadruplicate copy will be forwarded to his Chief Accounts Officer. The Range Superintendent will also maintain a register indicating name of the exporter, Range/Division/Commissionerate indicating name of the exporter godown, warehouse etc. are located and where AR-4 is prepared, AR-4 No. and date, description of items, corresponding invoice No. of the manufacturer, remarks regarding verification, date of dispatch of triplicate quadruplicate copy. (iii) the quintuplicate copy is to be retained by the Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, Central Excise, vide his letter F. No. V.Gen(30/Permission/Arch/2011-12, dated 23-6-2011, has informed that since the case records are old, the required documents could not be submitted. The appellants vide this office letter F. No. 25/MI/2007, dated 7-4-2011, were also requested to submit the copy of the two letters both dated 1-8-2001, along with the Annexures, under which they had approached the Commissioner, Central Excise, Bangalore-I Commissionerate, seeking extension of the time limit for export of goods from Taloja. The appellants vide their letter 18-5-2011, have submitted the copies of their letters dated 1-8-2001, addressed to Deputy Commissioner, Central Excise, Bangalore-III Division, Bangalore, and Deputy Commissioner, Central Excise, Bangalore-II Division, Bangalore seeking extension of time limit for extension for export of goods. In both the letters the appellants, at Para 2, have mentioned that the products, as mentioned in the Annexure to the letters, were lying in original packed condition as consigned by the manufacturer. The appellants have however, failed to submit the copies of the Annexures to the letters dated 1-8-2001. The appellants vide their le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be ascertained/verified, as to whether the goods cleared on payment of duty from the manufacturers premises were the same which have been exported by subject ARE-1. Even the Annexures submitted by the appellants vide their letter dated 18-5-2011/22-6-2011 cannot be accepted, as the Annexures do not bear signature of the appellants or its authorized signatory. However, it is seen that the jurisdictional Range Superintendent, Range VI, Taloja Division, of the then Mumbai-VII Commissionerate, in his letter dated 24-10-2001, had submitted the verification of the material as per stock statement given by the appellants and in his report he has specifically mentioned that, the Stock Position statement was duly signed by the authorized signatory of the appellants. Therefore, the authenticity of the Annexure to the letter dated 24-10-2001 which has been now submitted by the appellants, vide their letter 22-6-2011, is in doubt and the same cannot be accepted as the same Annexures that were submitted by the appellants before the jurisdictional Range Superintendent at the time of verification of the goods before the same were exported. I find that the adjudicating authority in his findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cleared certain quantity of goods for home clearances and remaining quantity for exports. However, the applicant failed to submit a detailed co-relation chart duly supported by documentary evidences showing that quantity of goods cleared for home consumption and export. They have also failed to submit the legible copies of ARE-1, shipping bill, bill of lading, CB Invoice, commercial invoice application filed by CCE, Bangalore seeking extension of time to export goods, and permission granted by CCE, Bangalore though they had promised to furnish the same in a week s time. Further, the enclosure of verification report of Range Superintendent of Taloja Range is not properly signed by authorized signatory. The stock verification report enclosure having detail of stock is also not signed by Central Excise Superintendent. Under such circumstances, Government finds that the applicant has failed to establish that the duty paid goods cleared from factory of manufacturer were have actually been exported in impugned case. In view of above, Government concurs with detailed findings of Commissioner (Appeals) and hence, finds no reason to interfere with the same. 10. Government finds that re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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