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M/s Bhuwalika Steel Industries Ltd., Thane Versus Commissioner of Central Excise, Mumbai-I

2016 (7) TMI 772 - GOVERNMENT OF INDIA

Claim of rebate/ refund - export of goods - ARE-Is, did not have a certification of the Central Excise Officer that the export goods were sealed with Central Excise seal before the Officers. - The ARE-Is also did not bear a declaration of the exporter that the consignment has been packed and sealed in his presence by the seal, indicating that the goods claimed to have been cleared for export, had been cleared from the factory without any sealing. - Held that:- Government observes that any export .....

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lished that goods which were cleared from factory were the ones actually exported or that goods exported cannot be correlated with goods cleared from the factory. - Leniencies in the sealing procedure could lead to possible fraud of claiming an alternatively available benefit which may lead to additional/double benefits. Therefore, Government notes that requirement and procedure of sealing either by Central Excise Officers or by self sealing is both a statutory condition and mandatory in su .....

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Bhuwalika Steel Industries Ltd. Thane against the Order-in-Appeal No.Th-1/RKS/26/2012/306 dated 29.2.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-I with respect to Order-in-Original No.Rn619/08-09 dated 15.12009 passed by the Deputy Commissioner, Central Excise, Kalyan-l Division. 2. Briefly stated the facts of the case are that the applicant is engaged in the manufacture of rolled products including non-alloy steel angles, of different sizes falling under Chapter Sub-head .....

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entral Excise Officer that the export goods were sealed with Central Excise seal before the Officers. The ARE-Is also did not bear a declaration of the exporter that the consignment has been packed and sealed in his presence by the seal, indicating that the goods claimed to have been cleared for export, had been cleared from the factory without any sealing. Accordingly, a Show Cause Notice dated 03.11.08 was issued to the applicants, as to why their rebate claim should not be rejected as the goo .....

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of such nexus of export goods and duty paid goods removed from the factory, the rebate of duty on the goods cannot be considered. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this Revision Application under Section 35EE of Central Excise Act 1944 before Central Government on the following grounds: 4.1 That they have adopted the 2nd procedu .....

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uty are exported, provided, we repeat, provided Deputy Commissioner/Commissioner (Appeals) has little inclination to perform the duty assigned to him/them under the CE Act, 1944 It is humbly submitted that, none of the lower authorities appear as understanding true purport of the scheme of rebate as enacted by the government or knows how to execute this being within the legal limit without causing undue harassment to the exporter when they pass such orders as in the instant case. As such these o .....

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such declaration. 4.4 That the applicants state that when the customs authority endorsed on the face of the shipping bill stating 'the goods were not opened by the customs for examination! the statement itself ascertains the following facts; the goods were definitely under cover, Customs did not open it to examine. 4.5 That ultimately the truth surfaced through the voice of Customs, which was long been denied by excise. The applicants were constantly submitting both in voice & writing be .....

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hes with the duplicate copy duly endorsed by the customs as 'goods were not opened by the customs for examination.' It is quite natural for an instant query to arose, like why customs did not open the goods for examination. But this does not prove goods are not exported, rather the way customs endorsed only affirms the fact of export of goods and the condition of the goods at that point of time - covered. And that was what required to be established in order to grant the rebate claim. Th .....

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lized by the BRC will evidence the required point. 4.8 That instead of doing this, Deputy Commissioner searched for any identification mark on consignment. When the consignment are packed in 154 bundles & kept inside 20 sealed containers & exported what is the use of identification marks? This only acknowledges how much factually the case is adjudged by him. Therefore, an order based on assumption & presumption is not tenable & need to be set aside & quashed. 4.9 The applican .....

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ube - [1998 (103) E.L.T. 270 (Tri)], Creative Mobous - [2003 (58) RLT111 (GOI)], Ikea Trading India Ltd. - [2003 (157) E.L.T. 359 (GOI)], and a host of other decisions on this issue 5. Personal hearing scheduled in this case on 08.07.2015 was attended by Shri Rajeev Agarwal, Advocate and Shri Dilip Patil, Account Manager on behalf of the applicant who reiterated the grounds of Revision Application. Shri Gurbaz Sandhu, Assistant Commissioner, Thane-I attended hearing on behalf of the Department a .....

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g and self certification. However, both these procedures have not followed by the claimant in respect of the exports for which the subject rebate claim has been filed. 5.2 In terms of Para 7.2 & of Chapter 8 of the CBECs Excise Manual of Supplementary Instructions 2005, the exporter is required to present the goods along with the copies of ARE-I for examination by the customs for the purposes of Central Excise to establish the identity and quantity i.e. the goods brought in the customs area .....

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he said manual, the rebate sanctioning authority has to satisfy himself that the goods cleared for export under relevant ARE-I were actually exported and the goods have 'duty paid' character. Since in this case, the goods cleared from the factory were without any sealing, either of the Central Excise department or of the exporter himself, it is not evident that the goods cleared from the factory are the same which were exported. It is also not free from doubt that the 'duty paid' .....

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dated 28.022012, there are two tables which shows the details/quantity of the goods cleared for export as per ARE-Is & shipping bill. On perusal of the both tables, it can be seen that the goods cleared from the factory vide aforesaid ARE-Is and the goods exported vide aforesaid shipping bill are not matching. 6. Government has carefully gone through the relevant case records available in case files, oral and written submissions and perused the impugned Order-in-Original and Order-in-Appeal. .....

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ory either following self sealing procedure or examination under central excise supervision. In this case, neither of the options were exercised. As such, export of duty paid goods is in question. The applicant stated that they have opted for the self sealing procedure, however, failed to declare the same. They also contended that export of duty paid goods established on the basis of available documents. Government now proceeds to examine the issue in light of rival contentions. 8.1 Government n .....

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ication and the particulars of the duty paid or payable, and if found in order, he shall seal each package or container in the specified manner and endorse each copy of the ARE-I in token of having done such examination. The original and duplicate copies of ARE-I shall be returned to the exporter, he shall retain the quadruplicate copy and send the triplicate copy to officer from whom goods are cleared, 8-1.2 Where the exporter desires self-sealing, the authorized person shall certify on all cop .....

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nd certify on the original and duplicate copies of ARE-I that the goods have been duly exported citing the shipping bill number and date and return the original copy to the exporter and forward the duplicate copy to the officer specified in the application. 9. In light of the above stated position, Government observes that any export clearance, intended to be made for claiming duty rebate, will be subject to Rule 18 ibid read with Notification No.19/2004-CE (NT) dated 06.09.2004. ARE-I is the pr .....

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niencies in the sealing procedure could lead to possible fraud of claiming an alternatively available benefit which may lead to additional/double benefits. Therefore, Government notes that requirement and procedure of sealing either by Central Excise Officers or by self sealing is both a statutory condition and mandatory in substance for removal of goods for exports under claim for rebate of duty in the present case the applicant has admittedly failed to comply with the provisions by neither fol .....

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ared on ARE-I were the same as those presented for export. Therefore, Government finds force in the order of Commissioner (Appeals) that goods cleared under ARE-I which are neither certified by Central Excise officers nor self certified in addition to not matching in quantity and weight were not actually exported. 11. Government has gone through the pleading of the applicants for condonation of the above act of omission/commission because the same is of simple procedural category. However, Gover .....

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he case of Collector of Central Excise, Vadodara Vs Dhiren Chemical Industries 2002 (143)ELT 19 (SC) and Paper Products Ltd. Vs Commissioner of Central Excise 1999(112) ELT 765(SC)in which the Apex Court has held that all the authorities working under the respective Central Excise/Customs Acts are to ensure strict applicability of all the relevant Notifications/Circulars as issued for the purpose It is a settled issue that benefit under a conditional notification cannot be extended in case of no .....

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