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M/s Cipla Ltd., Mumbai Versus Commissioner of Central Excise, Mumbai-III

2016 (7) TMI 719 - GOVERNMENT OF INDIA

Rebate/Refund claim - proper documents - applicant had submitted photocopies of clearance documents viz ARE-1 and Central Excise Invoice for sanction of rebate claim - Export of goods manufactured by third party - Held that:- Government notes that original copy of ARE-I and Excise invoice among other documents are essential documents for claiming rebate. Any non-submission of documents in the manner prescribed thus imparts a character of invalidity to the rebate claim. Also in the absence of the .....

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F.No.195/6S5/12-RA - ORDER NO. 52/2016-CX - Dated:- 29-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed -by applicant -M/S Cipla ltd -Mumbai-against the -Order-in-Appeal- No BC/10/MUM-W2012-13 dated. 20.04.2012 passed by the Commissioner of Central Excise (Appeals)) Mumbai-III} -with regard to Order No. passed by the Assistant Commissioner Of-central 2. Brief facts of the Case have Flied rebate claims for the goods- manufactured by M/S. Mistair health & .....

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ed the appeal and upheld impugned Order In Original. 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 That the consignments have been exported through two different ports. In respect of rebate claim mentioned at Sr. No 1 of the Order In Original, the goods are exported through CFS Mulund and JNPT Nhava Sheva. •In respect of rebate .....

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r and JNPT. And for the quantity exported through CFS Mulund we have submitted rebate claim on photocopies ARE-1 (Original, Duplicate & triplicate) and Excise Invoice duly attested by superintendent of maritime Commissioner, Mumbai III. In respect ARE-1 No. 357/GOI/2010 Mumbai I Commissionerate has sanctioned our part rebate claim for goods exported through Air Cargo Complex, Sahar vide Order In Original No. KII/545 R/2011 (MTC) dated 19.10.2011. 4.2 That the Mumbai III Commissionerate has s .....

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claim is sanctioned as per the procedure of law. There is no port vise jurisdiction to sanction the rebate claim. The order has got the finality and it is not reviewed by the department therefore we have withdrawn our part rebate claim submitted at Raigad Commissionerate vide our letter dated 8.2.2012. 4.3 That different Commissionerate has adopted different method in similar situation. The Office of Maritime Commissioner, Mumbai-I has sanctioned our rebate claim in similar condition, where clai .....

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authority needs to understand the practical difficulty of submitting single original document at two different authorities. Further, the export of goods and payment of excise duty is not in dispute. Therefore, mere rejection of rebate claim on this ground is tax on exported goods and against the express policy of Government of India. In order to promote export market our Government has relaxed industry in many procedural aspects in regards to export. We would like to state that at our part ther .....

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iédforaean3 submission of Original documents. In both the above cases the claimant have not submitted ARE-I documents with rebate sanctioning authority but they are granted rebate on the ground that the documents submitted along with rebate claim like shipping bill, Airway bill etc. proved the export of same goods. Also there is no dispute relating to payment of excise duty, 4.6 That as discussed above, when the goods are exported through two ports we are in practice to submit rebate clai .....

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ding along with rebate claim. Therefore, In view of this we hereby request you to set aside Order In Appeal and Order-in-Original-and allow our appeal with direction to sanction our rebate claim. 5. Personal hearing was scheduled in the case on 03.8.15 and 10.8.2015. Hearing was held on 10.8.15 was attended Upon perusal of records, by-Shri Prashant Mhatre on behalf of the applicant who made written submission reiterating to the contents of the revision application. Reliance was also placed on re .....

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hat only photocopies of certain documents on which goods were cleared for export ARE-1 and Central Excise were submitted along with rebate claim. Commissioner (Appeals) upheld impugned Order In Original. Now, applicant has filed this revision Application on grounds mentioned in para 4 (Above). 8. Government observes that the main issue is whether the applicant is entitled to rebate of duty on the basis of photocopies of documents. In this regard, Government notes that the admissibility of rebate .....

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epared two invoices one for the export of goods from CFS Mulund and the other for the Air cargo procedure laid down in the notification authorizes the concerned Asst. Commissioner to grant on refund on the verification of the original documents. It was held by the hon ble Tribunal in the case of M/s Mittal Alloys (2009(244) ELT 237 (Tri- Delhi) that interpretation of statues- rules and notifications - mandatory nature of conditions - conditions relating to procedure construed as non-mandatory in .....

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be observed in order to avail the notification. Hence, the applicants are entitled for rebate on the ground . 9. Government first proceeds to examine the statutory position with regard to the documents required for sanction of a rebate claim. 9.1 Rule 18 provides that Central Government may by notification grant rebate of duty on goods exported subject to conditions and limitations if any and subject to fulfillment of procedure as specified. Notification 19/2004-CE (NT) dated 06.09.2004 as amend .....

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all be required for fling claim of rebate: (i) A request on the letterhead of the exporter containing claim of rebate, RE-I nos. dates, corresponding invoice numbers and dates amount of rebate on each ARE-I and its calculations. (ii) Original copy of ARE-I, (iii) invoice issued under Rude 11, (iv) self-attested copy of shipping bill and (v) self-attested copy of Bill of Lading (vi) Disclaimer Certificate [in case where claimant is other than exporter] 8.4 After satisfying himself that the goods .....

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ty shall be provided to the exporter to explain the case and a reasoned order shall be issued From the above, Government notes that original copy of ARE-I and Excise invoice among other documents are essential documents for claiming rebate. Any non-submission of documents in the manner prescribed thus imparts a character of invalidity to the rebate claim. Also in the absence of the original copies of ARE-I duly endorsed by the Customs, the export of the same duty paid goods which were cleared fr .....

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extile Processors (231) ELT 3 (SC). Also it is settled that a notification is to be treated as part of the statute and it should be read along with the Act as held by the Collector of Central Excise Vs. Parle Exports (P) Ltd. 1988(38) ELT 741 (SC) and Orient Weaving Mills Pvt. Ltd. Vs. Union of India 1978 (2) ELT J 311 (SC) (Constitution bench). 11. Further the same issue has been decided by Hon ble Supreme Court in the case of J. Vashoda Vs. K. Shobha reported as 2007 (212) ELT 458 (SC). In rel .....

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