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TMI Blog2014 (3) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty (under protest) and exported was Thermogelic Formula I Chocolate or Thermogelic Formula I Dutch Chocolate. (b) Original copy of Central Excise Invoice No. 37, dated 10-5-2002, issued by M/s. Dominion Chemicals Ltd. was not submitted. (c) Duplicate copy of Central Excise Invoice No. 13, dated 17-4-2000, 17, dated 25-4-2000, 20, dated 2-5-2000 & 42, dated 30-5-2002 issued by M/s. Dominion Pharmaceuticals Ltd. were not submitted. (d) Original copy of Central Excise Invoice No. 52, dated 6-6-2000, 53, dated 13-6-2000 issued by M/s. Dominion Pharmaceuticals Ltd. were not submitted. (e) Assessable value was Rs. 8,34,17,917/-, but F.O.B. value was much lower at Rs. 1,53,54,379/-. (f) Whether the applicants had filed appeal against order of classification of the product. (g) Disclaimer certificate from the manufacturer of the goods exported not submitted. (h) Explanation for disclaimer does not appear on the body of the ARE-1. (i) Self-attested copy of mate receipt was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;The Range Superintendent, Jigani, Bangalore, vide his letter dated 13-8-2002, informed that M/s. Dominion Pharmaceuticals were not working and sealed and that records were not available. However, from Range record only RT-12 returns for the months of April to June, 2000 and PLA account could be traced. Further, invoice-wise statement for the month of April to June, 2000 was found in the respective RT-12 and the same could be made available. The Range Superintendent, Jigani, Bangalore, further informed that no invoices were available to verify the same with PLA and that since copies of invoice were not available verification could not be done at their end and accordingly triplicate ARE-1 was not certified by them. 2.5 The Range Superintendent, Madiwala Range-II, Bangalore-I, vide letter dated 12-8-2002 confirmed the correctness of the triplicate and quadruplicate copies of ARE-1 No. 1/2002, dated 22-1-2002 and corresponding invoices No. 29/8-5-2000, 32/9-5-2000, 34/10-5-2000, 37/12-5-2000, 1/15-5-2000, 45/16-5-2000, 59/6-6-2000, 60/6-6-2000 and 63/13-6-2000 of M/s. Dominion Chemicals Inds. Ltd. 2.6 The claim was independently scrutinized by the Assistant Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner (Rebate), vide Order-in- Original dated 22-2-2006, has inter alia held that the goods exported by the applicants were Thermogetic Formula I Chocolate and Thermogetic Formula I Dutch Chocolates. The date of clearance from the factory and the date of export of the said goods indicate that the said goods have been exported nearly after 21 months from the date of clearance from the factory. The actual date of manufacture was nowhere available and even applicants have shown inability to produce the same. This creates suspicion whether the goods exported were within expiry period or otherwise and hence they did not have the local market. In his Order dated 22-2-2006, the Assistant Commissioner (Rebate) further held that from the case records, the value of goods exported as per Central Excise invoices was Rs. 8,34,17,917/- and the value shown on the goods exported was Rs. 1,53,54,379/- which clearly indicates that the goods have been exported at the discarded price. The whole exercise appears to have been done to recover the Central Excise duty paid on the goods, which were not sold in the local market. 2.9 The Assistant Commissioner (Rebate), Central Excise, Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported under the cover of ARE-1 No. 1/2002, dated 22-1-2002, and the Range Superintendent, Talegoan Range has counter-signed the ARE-1. Therefore, the question arose as to how the goods manufactured by M/s. Li-Taka, Pune, were included and exported vide subject ARE-1, dated 22-1-2002. (v) that on perusal of the description of the goods vis-a-vis ARE-1 and packing list, it appeared that the goods were opened and repacked. Also that there was no record of any procedure followed for trans-shipment of duty paid goods from the original destination from 115, Koramangala Ind. Area, Bangalore to AFC Logistics, Trifed, Plot No. T-3, M.I.D.C. Taloja, for export. (vi) that the Annexure to ARE-1 gives details of only the goods to be exported. The goods appears to be repacked by the merchant exporter and the packages mentioned in the annexure do not co-relate with the Central Excise Invoices submitted by the applicants. In absence of the annexure to the letter, it cannot be ascertained whether the goods in respect of which the permission was granted have indeed been exported. 2.14 The adjudicating authority has accordingly held that it cannot be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; Bill of Lading bearing No. CCXLSAMBBYE10166, dated 26-1-2002 issued by Samrat Shipping & Logistics Pvt. Ltd. evidencing receipt of export goods. (g) FIRC from the ABN AMRO Bank evidencing receipt of USD 321894.74 against Applicant's Export Invoice No. HRBL/HRBL/ 02/01, dated 22-1-2002 and shipping bill No. 520414, dated 24-1-2002. (h) Declaration from the overseas entity i.e. Herbalife International of America Inc. confirming receipt of goods exported vide Invoice No. HRBL/HRBL/02/01, dated 22-1-2002 and Bill of Lading No. CCXLSAMBBYE10166, dated 26-1-2002. (i) Verification Report dated 24-10-2001 issued by Range Superintendent, Taloja, Mumbai certifying the fact that the total quantity of materials as per the stock position statement (i.e., 127386 units of goods) were identified with their respective invoices and were in original packed condition. 4.3 Further, the fact that the said export goods are duty paid can be substantiated through the following documents : (a) Certificate dated 13-5-2002 issued by Superintendent of Central Excise, Madiwala-II Range, Bangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 cleared from the manufacturer's premises could have been opened or repacked and hence could not be correlated with the export goods is wholly unsustainable. 4.6 It is humbly submitted that the Range Superintendent, Taloja, Mumbai, in his verification report dated 24-10-2001 while approving that the goods procured by the applicant are in original packed condition, has referred to a stock position statement (duly signed by the Authorised Signatory of applicant). It is the allegation of the Commissioner (Appeals) that the stock position statement submitted by the applicant vide its letter dated 22-6-2011 are not signed by the authorised signatory and therefore its authenticity is in doubt. Accordingly, the Commissioner (Appeals) has concluded that the goods which were verified by the Range Superintendent, Taloja cannot be correlated with the goods cleared for export and hence, the rebate claim filed by the applicant has been rejected. In this regard, the applicant is enclosing herewith t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 order has held that Annexure to ARE-1 was not signed by the Superintendent and also does not bear the concerned ARE-1 number. Therefore, the authenticity of the said Annexure cannot be established and hence, the applicant have failed to prove that the goods which were cleared from the manufacturers premises were the same goods which were exported vide ARE-1 No. 01/2002, dated 22-1-2002. 4.11 In this regard it is humbly submitted that the Commissioner (Appeals) while discussing the facts of the case, has himself admitted at Para 7 of the impugned order that the Range Superintendent, Madiwala Range-II, Bangalore-I, vide letter dated 12-8-2002 has duly confirmed the correctness of the triplicate and quadruplicate copies of ARE-1 No. 1/2002, dated 22-1-2002 in respect of goods procured from Dominion Chemicals. Therefore, to this extent it is not open to the Commissioner (Appeals) to question the authenticity of the ARE-1 and the relevant annexures. 4.12 Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same cannot be denied on mere technical grounds. The applicants rely on the following judgments : * Barot Exports [2006 (203) E.L.T. 321 (G.O.I.)] * Cosmonaut Chemicals v. UOI [2009 (233) E.L.T. 46 (Guj.)], * Mangalore Chemicals and Fertilizers Limited v. Deputy Commissioner of Commercial Taxes and Others [(1992) Supp. 1 SC 21]; * UOI v. Suksha International & Nutan Gems & Anr. [1989 (39) E.L.T. 503 (Supreme Court)]; * Sanket Industries Ltd. [2011 (268) E.L.T. 125 (G.O.I.)]; * I.O.C. Ltd. v. CCE, Calcutta-II [2004 (178) E.L.T. 834 (Tri.-Kolkata)] 5. Personal hearing was scheduled in this case on 19-9-2013, 8-8-2013, 15-10-2013 and 11-3-2014. Shri Keyur Shah, Senior Manager (PWC) attended the hearing on 11-3-2014 on behalf of the applicant who reiterated the grounds of revision application. The applicants also filed additional submission dated 17-3-2014, wherein they mainly reiterated the contents of revision application. 6. Government ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods (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 Superintendent of Central Excise incharge of the Range under whose jurisdiction such goods are stored. This application should be accompanied with form AR4 duly completed in sixtuplicate, the invoice on which they have purchased the goods from the manufacturer or his dealer and furnish the following information :- (a) Name of the exporter (b) Full description of excisable goods along with marks and/or numbers. (c) Name of the manufacturer of excisable goods. (d) Number and date of the duty paying document prescribed under Rule 52A under which the excisable goods are cleared from the factory and the quantity cleared. (Photo copy of invoice/duty paying document be submitted). (e) The rate of duty and the amount of duty paid on excisable goods. 8.2 The AR4 form should have a progressive number commencing with Sl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Superintendent Incharge of the range from where the goods have been exported for his record. (iv) the sixtuplicate copy will be given to the exporter for his own record." 8.2 From perusal of above, it can be implied that there are three basic conditions of said Board's circular. First, the goods should be available at the place of storage after clearance from factory in original factory packed condition and secondly such goods should be clearly identifiable and co-relatable with the goods cleared from the factory on payment of duty and thirdly the said duty paid goods are exported out of India. The documents submitted and examined by lower authorities do not establish the correlation of goods exported with the goods cleared from factory on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, 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 letter dated 18-5-2011 have submitted the copy of letter F. No. V.Gen(30) 36/Herbal life/2001, dated 24-7-2001 of Deputy Commissioner, Central Excise, Taloja, Belapur Commissionerate, vide which the application seeking extension of time limit of export was returned by the said Deputy Commissioner. The letter apparently mentions enclosures, and on perusal of the enclosure it appears that the same are not signed by the appellants or its authorized signatory, therefore it cannot be confirmed that the said Annexure(s) are the same that the Range Superintendent, Central Excise, Range VI, Taloja Division, the then Mumbai-VII Commissionerate has mentioned in his verification letter dated 24-10-2001, and therefore the genuineness of the Annexures could not be ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. 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 findings has clearly observed that the details of the goods exported i.e. Annexure to ARE-I, was not signed by the Superintendent and also does not bear the concerned ARE-I number. Therefore, the authenticity of the said Annexure cannot be established. He has further observed that the goods appear to be repacked by the merchant exporter and the packages mentioned in the annexure do not co-relate with the Central Excise Invoices submitted by the appellants. Further, in absence of the annexure to the letters dated 1-8-2001, it cannot be ascertained whether the goods in respect of which the permission was granted have indeed been exported. The adjudicating authority has thus held that it cannot be conclusively said that the goods which were cleared from the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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