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2016 (7) TMI 802 - GOVERNMENT OF INDIA

2016 (7) TMI 802 - GOVERNMENT OF INDIA - TMI - Condonation of delay - Rebate / refund claim - proof of export of goods - discrepancy in ARE-I from - applicant contended that, the customs authorities while signing certificate on triplicate of ARE-I against Part-B inadvertently endorsed wrong shipping bill no. 1044599 which was subsequently was got corrected as no. 1045171 bearing the dated signatures of the customs officers on such corrections made by them dated 07.01.2010. - Held that:- Gove .....

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elay in filing Revision Application. - Government observes that despite specific directions, applicant failed to file Revision Application promptly and the above reason for delay appears to be very vague, unclear and an afterthought. Under such circumstances, Government is of considered opinion that the applicant has clearly failed to show sufficient cause which prevented them from filing Revision Application within the prescribed time limit under Section 35 EE. As such, the applicant's appl .....

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ppeals), Ghaziabad with respect to Order-in-Original No. 91/Rebate/10-11 dated 20.09.2010 passed by the Assistant Commissioner, Central Excise Division-Il, Ghaziabad. 2. Brief facts of the case are that the applicant is engaged in the manufacture of Galvanized Steel Pipes /Tubes falling under Chapter Subheading no. 73069090 of the Central Excise Tariff Act, 1985. The applicant exported the said excisable goods vide ARE-Is as per the details given under: ARE -1 Comm. Invoice Shipping Bill Bill of .....

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9.20 1046962 dt 11.01, 10 40431.0 5 DEL/ATL/ANT/O 95 dt.19.01.10 154250 Total 447727 2. The goods were cleared from the factory under ARE-Is as detailed above on payment of Central Excise duty and the applicant submitted original and duplicate copies of the said ARE-Is duly endorsed by the Customs authorities. On examination of ARE-I No. RST/121/09-10 dated 08.01.2010, it was found that in the part B of the said ARE-I the Customs Authority has mentioned the shipping bill No. 1044599 as evidence .....

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was received in spite of several reminders. Hence, an amount of ₹ 1,54,250 /- pertaining to the said ARE-I No. RST/121/09-10 dated 08.01.2010 was passed not admissible to the applicant. Hence, the Assistant Commissioner vide Order-in-Original No. 91/Rebate/10-11 dated 20.09.2010 sanctioned an amount of ₹ 2,93,477 /- (Rs.4,47,727-Rs.1,54,250 /-). 3. Aggrieved by the said order, the applicant filed appeal before the Commissioner (Appeals) Ghaziabad, who vide Order-in-Appeal No. 268-CE/ .....

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icate etc. submitted by the applicant with their rebate claim, evidencing export of goods and receipt of sale proceeds of such transaction. That he merely placed reliance on endorsement of shipping bill number appended by customs officials at the port of export which is purely a human error and cannot be relied upon for rejecting the claim of rebate being not substantiated or supported by any other document. 4.2. That the appellate authority had sought to verify the correctness of such endorseme .....

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ng the issue on the face hard and irrefutable evidences which squarely substantiated that the goods cleared under impugned ARE-Is were actually exported and sale proceed in terms of foreign exchange realized. 4.4. That the substantive right of the applicant to get the rebate on duty paid export goods cannot be denied on the ground that a human error had occurred that too on the part of the departmental officer and as it was for the department to verify the genuineness of the endorsement made by .....

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nction of interest as applicable. 5. The applicant also made additional written submissions which are as under: 5.1 That the customs authorities while signing certificate on triplicate of ARE-I against Part-B inadvertently endorsed wrong shipping bill no. 1044599 which was subsequently was got corrected as no. 1045171 bearing the dated signatures of the customs officers on such corrections made by them dated 07.01.2010. 5.2. That all relevant documents viz Customs invoices, quantity, bill of  .....

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such corrections made by the Customs Officers. 5.3. That the details of the ARE-I and the shipping bill no. 1045171, under dispute are co-related with the customs invoice no. 550 dated 07.10.2010, Net Weight 51.150 MT and Bill of lading also contains entry of shipping bill no. 1045171. 5.4. That the revenue has not denied the export of goods under dispute under the aforesaid orders as also clearance made for goods exported on payment of duty and the same has been verified with RG 23 A Il records .....

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aken place and the law is settled now that substantive benefit cannot be denied for procedural lapses. That procedure has been prescribed to facilitate verification of substantive requirement. That the core aspect or fundamental requirement for rebate is its manufacture and subsequent export. And as long as this requirement is met other procedural deviations can be condoned. 5.6. The applicant relied upon the following cases laws: TVS Suzuki Ltd192 Tri Daggers Forst Tolls Ltd -2011 (271) ELT 047 .....

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m and packing list etc. But these documents do not indicate the cross reference of the ARE-I and shipping bill in question. 6.2. That on examination of ARE-I No. RST/121/09-10 dated 08.01.2010, it was found that in the part B of the said ARE-I the Customs Authority has mentioned the Shipping Bill No. 1044599 as evidences that the goods under ARE-1 121 dated 08.01.2010 have been exported under shipping bill no. 1044599, whereas the party has submitted the shipping bill no. 1045171 dated 07.01.201 .....

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roach itself the Customs Authorities for rectification of such discrepancy. That the applicant vide their rebate claim dated 30.03.2010 submitted the original and duplicate copies of subject ARE-I. But they fail to notice the discrepancies in the subject ARE-I No. That on filing the rebate claim by the applicant the department noticed the same and forward to Customs Authorities for rectification. That the rebate claim of the applicant was sanctioned after deducting the rebate claim in respect of .....

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lated time of 3 months against the order in appeal dated 20104.2011 as received on 23.05.2011 and since then all papers were lying dormant which he returned to the applicant in June 2015. 7.2. That no appeal lie to the CESTAT and the Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) of Section 35 B of Central Excise Act, 1944 if such order relates to a rebate of duty of excise on goods exported to any country or territory outside India or .....

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d the hearing on behalf of the department and reiterated the written submission. 9. Government has carefully gone through the relevant case records available in case file, oral & written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 10. Government first takes up the application for condonation of delay in filing the Revision Application by the applicant after a delay of eight days. The applicant vide their letter dated 09.07.2015 has submitted that they were pur .....

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ll not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) of Section 35 B of Central Excise Act, 1944 if such order relates to a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India, as such the CESTAT transferred said appeal along with all documents before revisionary Authority for consideration. The applica .....

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f the applicant regarding filing of appeal before the wrong forum due to incorrect advise of their Counsel, as the notes of guidance of the impugned Order-in-Appeal clearly mentions where appeal would lie in such cases. Also the applicant has failed to place on record any evidence of having filed an appeal in CESTAT or copy of direction from CESTAT. Government, therefore cannot consider exclusion of time spent before CESTAT for purpose of condonation of delay in filing Revision Application. 11.2 .....

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