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TMI Blog2016 (7) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Rules, 1944. The adjudicating authority held that the exporter has not submitted (BRCs) in respect of export clearances for the period 21.12.09, 28.06.2010 to 23.07.2011 & 28.04.2010 on the date of the Order-in-Original viz 01.04.2011, 30.06.2011 & 21.07.2011 when in terms of RBI guidelines the foreign proceeds are to be realized within a period of one year from date of export. He therefore, rejected the rebate of duty for non production of BRCs. 3. Being aggrieved by the impugned Orders-in-Original, the respondent filed appeals before Commissioner (Appeals), who was of the view that the rebate sanctioning authority can very well verify the BRC subsequently also and take necessary action to recover the duty within the time limit if the BRC is not produced within the prescribed time. Therefore the appeals were decided in favour of the respondents by holding that submission of BRCs have not been envisaged as precondition for grant of rebate under Notification No. 19/2004-CE(NT) dated 06.09.2004 read with Rule 18 of the Central Excise Rules, 2002. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicant department has filed these Revision Applications unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without considering whether the assesse had complied with the requirements of the Circular / instructions referred to above. 5. Show Cause Notices were issued to the respondent under Section 35EE of the Central Excise Act, 1944 to file their counter reply. The respondents vide their written submission dated 23.07.2012, has mainly contested the applicability of Board's Circular No. 354/70/97-0< dated 13.11.1997 apart from reiterating contents of impugned Order-in-Appeal. The respondents further vide written submissions dated 27.10.2014 and 06.07.2015, mainly relied upon Hon'ble Allahabad High Court's Order in case of Polyptex Corporation Ltd. Vs. Joint Secretary, Finance reported in 2014 (306) E.L.T. 24 (All) with respect to Government of India Order No. 1184/2011-CX dated 07.09.2011. They also submitted that they have obtained full realization of export proceeds in respect of the revision application and 50% realization of the remaining two export proceeds. Therefore while the 1 st revision application becomes infructous straight away under the changed circumstances, in case of the other two their earlier submission remains effective in view of the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether rebate can be denied when at the time of sanction of the claim, the period prescribed for receipt of foreign exchange remittance is over. In this case there is no doubt that the export pertained to the period 21.12.2009, 28.06.2010 to 23.07.2011 and 18.04.2010 and pending the sanction of the rebate, Show Cause Notices were issued on 18.03.2011, 19.05.2011, and 08.07.2011 (for non production of proof of realization of export proceeds) i.e after the BRCs become due. 10. Government observes that rebate claims are submitted along with relevant documents as mentioned in para 8.1 to 8.5 of Chapter 8 of the CBEC Manual of Supplementary Instructions. This list of documents does not prescribe submission of BRCs as one of the precondition for claiming rebate. As such, a rebate claim under Rule 18 which is required to be filed within one year from date of export is not required to be filed along with BRCs as the period for receipt of remittance is one year or as extended. 11. Government observes that Commissioner (Appeals) has mainly relied upon CBEC's Circular No. 354/70/97-CX dated 13.11.1997 which reads as under: "It has been brought to the notice of the Board that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts are effected under the Duty Exemption Scheme. 2.3 Where the TR copy is not received from the pod of Shipment within 30 days of the Let Export Order, the exporter may present the relevant Mates Receipt issued by the shipping line at the time of loading of container (s) on board the ships and bill of lading, to the jurisdictional Assistant Commissioner of Central Excise or the Maritime Commissioner, as the case maybe. These should be accepted for the purpose of verifying the shipment of the goods at the Gateway port After verification, that goods have actually been exported, the rebate claims should be sanctioned or the bond should be discharged, as the case may be. 2.3.1 A post facto verification shall be done by the Central Excise Division. The file for acceptance of proof of export shall be dosed, once TR copy is received from ICD/CFS within 120 days of the LET Export Order containing details of actual export. In case TR copy is not received within 120 days, the exporter may submit the Bank Realization Certificate of export receipts in Original along with certified copy of this certificate. The Original will be returned to exporter after verification, and the certified copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, Section 13 of Foreign Exchange Management Act stipulates penalty provision for non -realization of foreign exchange. The provisions of Foreign Exchange Management Act make it clear that the export of goods without realization of export proceed is not permitted. So in such cases, the rebate cannot be granted in terms of para 2(g) of Notification No. 19/2004-CE(NT) dated 06.09.2004 and condition of Notification No. 19/2004CE(NT) dated 06.09.2004 cannot be said to be complied with and rebate can therefore not be allowed under Rule 18 ibid. 14. It is a fact on record that the stipulated period of one year for the realization of export proceeds had been exceeded much before issue of the show cause notices. The question of submission of BRC would not arise when rebate is filed and sanctioned within one year of the date of export. However, in a scenario as in the present case were pending the sanction of rebate, the Bank Remittance Certificate had become due, it cannot be held that rebate ought to be sanctioned as it is not a prescribed document at the time of filing of rebate. It is also a fact on record that till date the respondent has failed to submit the BRCs to the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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