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2016 (7) TMI 232 - GOVERNMENT OF INDIA

2016 (7) TMI 232 - GOVERNMENT OF INDIA - 2016 (344) E.L.T. 677 (G. O. I.) - Rebate / refund claim on export of goods - non-realization of foreign exchange - exporter has not submitted (BRCs) in respect of export clearances - Commissioner (Appeals) observed 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. - Held that:- It is a fact on record that the s .....

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rebate. It is also a fact on record that till date the respondent has failed to submit the BRCs to the department. Though it is claimed by them before the Revisionary Authority that remittance has been received by them partially, no evidence has been produced to that effect. - It is a universally known principle that one of the main reasons any export incentive including rebate is allowed is to encourage export- generated foreign exchange earnings for the country. From a harmonious reading o .....

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RIMJHIM PRASAD, JOINT SECRETARY ORDER: These Revision Applications are filed by the Commissioner of Central Excise, Bangalore - Il Commissionerate against Order-in-Appeal Nos. 413, 414 & 415 / 2011 - C.C dated 26.12.2011 passed by the Commissioner of Central Excise (Appeals-I), with respect to the Orders-in-Original dated 01.04.2011, 30.06.2011, 21.07.2011 passed by the Assistant Commissionerate Central Excise, "El" Division, Bangalore. M/S. Globe Technologies is the respondent in .....

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s) 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 .....

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ed by the impugned Orders-in-Appeal, the applicant department has filed these Revision Applications under Section 35EE of the Central Excise Act, 1944 on the following grounds: 4.1 Though BRC is not one of the documents to be filed along with the rebate claim as per Para 8.1 to 8.5 of Chapter 8 of the CBEC Manual of Supplementary Instructions, yet BRC is one of the vital documents to monitor the realization of export proceeds in the case of exports. 4.2 Board vide Circular No. 354/70/97-CX dated .....

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the full export value of goods or software exported, from six months to twelve months from the date of export, subject to review after one year. 4.4 The order rejecting the rebate claim was passed by the Assistant Commissioner on 01.04.2011, 30.06.2011 and 21.07.2011 by which time the prescribed time limit of twelve months for realization of the export proceeds as per the RBI's instructions had also elapsed. Even considering the Board's Circular referred to at 4.2 the assesse had time up .....

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ot caused any verification to know or to ascertain as to whether the export proceeds have been realized by the assesse as per the instructions of the Reserve Bank of India and also as to whether the assesse had complied with the requirements of the above said Board's Circular. Thus, the orders of Commissioner (Appeals) setting aside the order of rebate sanctioning authority, are improper and deserve to be set aside as the same have been passed without proper verification of the documents and .....

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urther 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 wh .....

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within the time limit prescribed by RBI vide circular AP (DIR Series) No. 50 dated 30.06.2008 & Board's Circular No. 354/70/97 CX dated 13.11.1997, and that rebate is an export incentive given for earning foreign exchange for the country and no evidence has been produced for the realization of export proceeds. Further vide letter dated 15.05.2015, the Commissioner, Central Excise Bangalore-Il, informed that the assesse has not produced any evidence for having realized the export proceed .....

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d and has perused the impugned orders. 8. Upon perusal of records, Government observes that the rebate claims were rejected by the original authority on the ground that the respondent failed to produce Bank Remittance Certificates for export clearances for the periods 21.12.2009, 28.06.2010 to 23.07.2011 and 18.04.2010 and till the date of the impugned orders, when in terms of RBI guidelines, the foreign exchange proceeds are to be realized within a period of one year from the date of export. Th .....

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Applications on grounds mentioned in para (4) above. 9. Government observes that the main issue is whether 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 .....

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long 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 there are inordinate delays in acceptance of proof of export where goods are exported through an Inland Container Depot/ Customs Freight Stations (ICDs/CFSs) because of delayed receipt non-reciept of the Tran .....

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ceptance of proof of exports which is as follows: 2.1 The Appraiser/Superintended (Shed) will give a certificate in part-B of the Original, Duplicate and Sixtuplicate copies of AR-4/ AR-5 simultaneously when he gives the Let Export Order on the Shipping Bills in terms of Section 51 of the Customs Act, 1962. This Certificate shall be in the following from in lieu of the format given in Part-B of the AR-4/AR-5: Certified that the consignment was stuffed in Container No(s) under Shipping Bill No. d .....

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y before whom he bond is executed. 2.2 Under the present procedure the Transference Copiés of the Shipping Bill (TR-I & TR-II) move along with the goods from ICD/CFS to the port of shipment and are endorsed with the details of Mate Receipt No, name of the issuing person, details of the cases/cartons/packages/containers, name of the ship, sate of sailing and the port of sailing by the officer of Customs (Preventive Officer) who supervises the shipment. One copy of TR is received back i .....

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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 .....

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export will be closed. 2.3.2 If TR copy or Bank Realization Certificate is not received within 160 days of the date of sanction of rebate, action for recovery of rebate shall be initiated well within the limitation period Government notes that this Circular deals with speedy acceptance of proof of exports in respect of goods exported though Inland Container Depots/ Customs Freight Stations. It merely prescribes for furnishing of BRC in lieu of transference copy of Shipping Bill for purpose of p .....

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liance on Reserve Bank of India's Circular AP (DIR Series) No. 50 dated 03.06.2008 by virtue of which the period of realization and repatriation to India of the amount representing the full export value of goods has been laid down as twelve months from the date of export. Therefore, for any export made exchange proceeds are to be received within 06 months/one year or extended period as permitted by RBI. 13. Government notes that as per condition at para 2(g) of Notification No. 19/2004-CE(NT .....

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s per Section 8 of Foreign Exchange Management Act, 1999, where any amount of foreign exchange is due or has accrued to any person resident in India, such person shall take all steps to realize and repatriate to India, such foreign exchange within time period prescribed by RBI. Further, 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 withou .....

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he 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. Though it is clai .....

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