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M/s Universal Impex, Mumbai Versus Commissioner of Central Excise, Mumbai-Ill.

2016 (7) TMI 229 - GOVERNMENT OF INDIA

Rebate claim of duty paid on exported goods under Rule 18 of the Central Excise Rules, 2002 - applicant failed to follow procedure of self sealing as provided in para 3(a)(xi) of the Notification No. 19/2004-CE(NT) dated 06.09.2004 and failed to submit triplicate and quadruplicate ARE-I to range Superintendent vide Order-in-Original No.22/10-11/ACC Rebate/Raigad dated 07.0412010. - Held that:- if goods are cleared from a factory for export under claim for rebate it has to be under the cover .....

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hich are exported and without having followed the procedure as described in the Notification it cannot be established that goods which were cleared from factory were the ones actually exported or goods exported cannot be correlated with goods cleared from factory. - Government notes that it is an undisputed fact on record that in the present case the goods have been cleared by the applicant from the factory of the manufacturer on invoices only between 19.04.2007 to 23.04.2007 and dispatched .....

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ich may be condoned. - Rebate claim denied. - Decided against the assessee. - F.No.195/254/12-RA - Order No. 10/2016-CX - Dated:- 15-1-2016 - Smt. Rimjhim Prasad, Joint Secretary ORDER: This revision application is filed by applicant M/S Universal Impex, Mumbai, against the Order-in-Appeal US/506/RGD/11 dated 30.12.11 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-Ill with regard to Order-in Original passed by the Assistant Commissioner of Central Excise (Rebate), Raigad. 2. .....

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rder-in-Original No.22/10-11/ACC Rebate/Raigad dated 07.0412010. 3.Being aggrieved by the said Order-in-Original applicant filed appeal before Commissioner (Appeals) who rejected 'the same vide the impugned Order-in-Appeal No.US/506/RGD/11 dated 30.12.2011. 4.Now, being aggrieved with the Order-in-Appeal, the applicant has filed this revision application before Central Government under Section 35 EE of Central Excise Act, 1944 mainly on the following grounds: 4.1 We submit that the triplicat .....

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ecisions of the Tribunal documents such as Shipping Bills, Central Excise Invoice submitted showing export of goods and duty payment- Earlier Such ARE-I signed by RO and rebate granted fault lies with RO - following the ratio of various Tribunal decisions, it is held that the applicant is entitled to rebate claims - Barot Exports {2006 (205) ELT 321 4.3 In the case of Caspro Export before the Commissioner of Central Excise (Appeals), Pune Il reported in 2010 (261) ELT 790 (Commr. Appl), it was h .....

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regard to duly payment and there is no dispute whether the goods had been exported or not. There is only a technical lapse, which may please be condoned. 4.5 The applicant in this case has submitted the Original & Duplicate copies of ARE-I, Part-B of which is duly endorsed by Customs and also submitted copy of Shipping Bill, Bill of Lading and BRC. There is an endorsement on Part-B of ARE-I that the goods had been exported. There is no dispute with regard to duty payment and there is no dis .....

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apses as the same was first time export. Nobody attended hearing on behalf of department. A written submission was also made during the hearing as under: 5.1 The subject export is our first export of goods with dock stuffing and accordingly the first claim for refund of excise duty. The ARE-I for the said shipment was prepared after the complete consignment was received at JNPT Container Terminal. The stuffing of the containers was done under custom supervision and thereafter the ARE-I was signe .....

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As this was our first instance of export, our staff had presumed to submit the ARE-I within 48 hours of stuffing of container of and after authentication by custom officials. 5.4 However after lapse of 4 months, the ARE-I was signed by excise official, after which we could submit the refund claim. 5.5 In this particular instance we have submitted all the documents leaving no doubt about export of the subject consignment and confirmation have been received from excise authorities about payment of .....

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& written submission and perused the impugned Order-in-Original and Order-in-Appeal. 7.On perusal of records, Government observes that the applicant's rebate claim under Rule 18 of Central Excise Rules 2002 was rejected on the ground that the applicant did not submit the triplicate and quadruplicate ARE-I to jurisdictional Range Superintendent within 24 hours of the date of clearances and also failed to follow the procedure of self-sealing as prescribed in para 3(a)(xi) of the Notificati .....

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ing the goods sealed at the place of dispatch by a Central Excise Officer or under self sealing. 8.1 The exporter shall present the goods along with 4 copies of application in Form ARE-I to the Superintendent or Inspector of Central Excise having jurisdiction over the factory of production who shall verify the identity of goods mentioned on the application and the particulars of the duty paid or payable, and if found in order, shall seal each package or container and endorse each copy of the app .....

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tendent or Inspector of Central Excise within 24 hours of removal of goods. 8.3 From a plain reading of the above provisions it is clear that if goods are cleared from a factory for export under claim for rebate it has to be under the cover of an ARE-I duly certified for purpose of identity of goods either by the Superintendent/lnspector or the person from the factory as the case may be. This duly verified/certified ARE-I is then certified by the Customs after due verification/examination that g .....

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tory. 8.4 Therefore, Government notes that nature of above requirement is both a statutory condition and mandatory in substance which also finds support in various judgments of the Apex Court: 8.4.1 Hon'ble Supreme Court in case of Sharif-ud-Din, Abdul Gani - (AIR 1980 SC 3403) has observed that distinction between required forms and other declarations of compulsory nature and/or simple technical nature is to be judiciously done. When non-compliance of said requirement leads to any specific/ .....

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cation has to be treated as a part of the statute and it should be read along with the Act as held by in the case of Collector of Central Excise Vs. Parle Exports (P) Ltd - 1988(38) ELT 741 (S.C.) and Orient Weaving Mills Pvt. Ltd. vs. Union of India 1978 (2) ELT J 311 (S.C.) (Constitution Bench). 9. Government notes that it is an undisputed fact on record that in the present case the goods have been cleared by the applicant from the factory of the manufacturer on invoices only between 19.04.200 .....

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under excise supervision or under self-sealing and self-certification procedure. The conditions and procedure as laid down under Notification No. 19/2004-CE(NT) dated 06.09.2004 for sealing of goods at the place of dispatch were not followed. Correlation can therefore not be said to have been established as to whether the goods that were cleared from the factory, were the same as those exported. 10.Government also observes that the applicant relied on the various judgments regarding procedural r .....

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