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M/s Themis Medicare Limited, Haridwar Versus Commissioner of Customs & Central Excise, Meerut-l

2016 (7) TMI 230 - GOVERNMENT OF INDIA

Rebate of duty of input stage on export of goods - Rule 18 - excisable goods were cleared for export by them in respect of ARE-2, without obtaining prior permission of the Assistant Commissioner of Central Excise to the effect in terms of Notification No. 21/2004CE(NT) dated 06.092004 - Held that:- The applicant cannot claim the input rebate as a matter of right when he has failed to follow the provisions of Notification No. 21/2004-CE(NT) without giving explanation for any valid reasons for not .....

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that non fulfilling the statutory conditions laid down under the impugned Notification and not following the basic procedure of export as discussed above, cannot be treated as just a minor or technical procedural lapse for the purpose of availing the benefit of rebate on the impugned goods. As such there is no force in the plea of the applicant that this lapse should be considered as a procedural lapse of technical nature which is condonable in terms of case laws cited by applicant. - Rebate cla .....

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sistant Commissioner, Central Excise, Dehradun. 2.Brief facts of the case are that the applicant are engaged in the manufacture of drugs and medicines. They filed rebate claim of duty for ₹ 28,033/- under Notification No. 21/2004-CE(NT) dated 0609.2004 in respect of the inputs used in the manufacture of their export goods. The rebate sanctioning authority vide Order in-Original No. R-167/2011 dated 26.09.2011 rejected the rebate claim of ₹ 11,053 on the grounds that the goods excisab .....

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ons of the notification ibid. 'Thus the applicants were alleged to have contravened the provisions of Notification no. 21/04-CE(NT) dated 06.09.2004 read with chapter 8 of the CBEC's Excise Manual of Supplementary Instructions. 3.Being aggrieved by the impugned Order-in-Original, the applicant filed an appeal before the Commissioner (Appeals), who rejected the same vide Order-in Appeal No. 212-CE/MRT-I/2012 dated 24.07.2012. The Commissioner (Appeals) on passing the order has observed th .....

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whereas the amount of rebate claim was ₹ 28,033/- only. That this could have been considered typographical error only when their submissions were made in point no. 1 of their Appeal would have been included. That their grounds of appeal were not considered, the mentioning of rebate claim amount of ₹ 75,238/- leads to the conclusion that the order was issued without considering their submission made in their appeal. 4.2.That in the last paragraph of the appellate order it has been men .....

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ing in the captioned case was held on 04.112015which was attended by Shri S.B. Lal, Consultant who appeared on behalf of the company and submitted a written submission which is as under: 5.1. That the applicant seeks relief from the order of the Commissioner (Appeals) under Order-in-Appeal which has been passed relying upon incorrect documents or figures and allegations involving procedural lapses of rectifiable nature. 5.2. That the main allegation of rejection of rebate claim was that the inpu .....

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983 ELT 1534 (SC) Order No. 1513-1514/2012-CX dated 05.112012 2014 (313) ELT 924 (GOI) 5.5. That the provisions as to filing of declaration are intended to allow the proper officer to verify the correctness of the ratio of input and output mentioned therein and to draw satisfaction that there is no likelihood of evasion of duty. That this satisfaction was in fact , drawn by the proper officer in instant case and needful permission was issued . That the purpose of declaration was met with and the .....

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ities to draw reasonable satisfaction. That such declaration was available and rebate claim was filed accordingly. 5.8. That the Government policy for export promotion and the international business practice is not to export taxes and rebate benefits are allowed to exporters to neutralize tax/duty incidence in respect of the export goods. That mere procedural lapse of rectifiable nature cannot land should not take away the benefits announced in terms of larger objectives of export promotion. 6.G .....

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cted by the original authority, The Commissioner (Appeals) also rejected the appeal filed by the applicant. Now the applicant has filed this Revision Application on grounds mentioned in para 4 and 5 above. 8.Government finds that the Rule 18 of Central Excise Rules 2002 provides that where any goods are exported, the Central Government may, by Notification, grant rebate of duty paid on such excisable goods or duty paid on material used in manufacture or processing of such goods and the rebate sh .....

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itions and provision of Notification No.21/2004-CE (NT) dated 6/09/2004. 9.Government notes that in the present case, it is an undisputed fact that the applicant, a unit registered with Central Excise, availed benefit b} rebate under Rule 18 for inputs used in manufacture of goods for the purpose of export but failed to fulfill the conditions and did not follow the prescribed procedure in respect of some of the ARE 2. 10.In reference to the above, Government first proceeds to examine the conditi .....

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ll file a declaration with the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture, describing the finished goods proposed to be manufactured or processed along with their rate of duty leviable and manufacturing/processing formula with particular reference to quantity or proportion in which the materials are actually used as well as the quality. The declaration shall also contain the tariff classification, rate .....

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provisions of Notification No. 21/2004-CE(NT). Neither has the applicant at any point prior to export claimed that the input output ratio as per EXIM policy will be followed. The applicant cannot claim the input rebate as a matter of right when he has failed to follow the provisions of Notification No. 21/2004-CE(NT) without giving explanation for any valid reasons for not filing the declaration. In this case applicant has not admitted the occurrence of any unintentional procedural lapse and rat .....

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s in the factory of manufacture or process. If after such verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise is satisfied that there is no likelihood of evasion of duty, he may grant permission to the applicant for manufacture or processing and export of finished goods. The condition is of such a nature that the declaration has to be filed and verification of the input output ratio is to be carried out prior to export of goods because once the .....

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idered as a procedural lapse of technical nature which is condonable in terms of case laws cited by applicant. 11.Government notes that nature of above requirement is both a statutory condition and mandatory in substance for removal of goods for exports under claim for rebate of duty either on the final goods exported or on the inputs contained therein. 11.1.It is in this spirit and this background that Hon'ble Supreme Court in case of Sharif-ud-Din, Abdul Gani (AIR 1980 SC 3403) has observe .....

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Court in the case of Government of India Vs. Indian Tobacco Association 2005 (187) ELT 162 (S.C.); Union of India Vs. Dharmendra Textile Processors 2008(231) ELT 3 (S.C.). Also it is settled that a Notification 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). .....

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