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M/s Themis Medicare Limited, Haridwar Versus Commissioner of Customs & Central Excise, Meerut-l

2016 (7) TMI 803 - GOVERNMENT OF INDIA

Rebate / refund claim - input stage credit - inputs used in the manufacture of their export goods - claim was rejected on the grounds that the applicant has manufactured and exported the finished goods before filing the requisite declaration under the said notification and failed to fulfil the condition of the Notification No. 21/2004 -CE(NT) dated 06.09.2004. - Held that:- While claiming the rebate under such Notification No.21/2004-NT dated 06.092004 the applicant should have ensured stric .....

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required to be followed by the applicant particularly when the applicant is the beneficiary in the claim of rebate. - Revision application rejected - Decided against the applicant. - F.No.195/1479/12-RA-CX - ORDER NO.11/2016-CX - Dated:- 20-1-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This revision application is filed by M/S Themis Medicare Limited, Haridwar (herein after referred to as applicant) against the Order-In-Appeal No. 202-CE/MRT-1/2012 dated 23207.2012 passed by the Commi .....

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uthority vide Order In-Original No. R-221/2011 dated 24.11.2011 rejected the rebate claim of ₹ 75238/- on the grounds that the applicant has manufactured and exported the finished goods before filing the requisite declaration under the said notification and failed to fulfil the condition of the Notification No. 21/2004 -CE(NT) dated 06.09.20041 Thus the applicants were alleged to have contravened the provisions of Notification no. 21/04-CE(NT) dated 06.09.2004 read with chapter 8 of the CB .....

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in the discussion and findings of the impugned order refers to ARE-2 No. 12/2010 dated 15.07.2010, 14/2010 dated 12.08-2010 and 22/2010 dated 25.10.2010 whereas the show cause notice was issued in respect of ARE 2 No 20/2010-11 dated 18.10.2010 for ₹ 73450/- and ARE 2 No.36/2009-10 dated 31.03.2010 for ₹ 1788/- totaling the amount of ₹ 75238/-. That the wrong documents were discussed for the purpose of disallowing the rebate benefit. 4.2 That in the impugned order it was alleg .....

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imer certificate in respect of ARE2 No. 20/2010-11 dated 18.102010 for ₹ 73,450/- was not the subject matter of discussion and findings of the Order-In-Original No. R-221/2011 against which the appeal had been filed by the applicant. 5. Personal hearing in the captioned case was held on 04.11.2015 which was attended by Shri S.B. Lal, Consultant who appeared on behalf of the company and submitted a written submission which is as under: 5.1. That the applicant seeks relief from the order of .....

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uthority which verified and agreed to the input-output ratio. That there was no discrepancy in the amount of the submitted rebate claim. 5.4. The applicant has placed reliance on the following case laws: M/S Murii Agro Products Ltd, Nagpur 2006 (200) ELT 175 (GOI) (JOI vs AV. Narasimhalu 1983 ELT 1534 (SC) Order No. 1513-1514/2012-CX dated 05.11.2012 2014 (313) ELT 924 (GOI) 5.5. That the provisions as to filing of declaration are intended to allow the proper officer to verify the correctness of .....

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5.7. That Pharmaceutical sector is one of the highly regulated sectors in India. That the detailed composition of the drugs is approved by the Drug Regulator under the provisions of the Drug & Cosmetics Act, 1940 and rules there under which in turn is accepted by Central Excise authorities to draw reasonable satisfaction. That such declaration was available and rebate claim was filed accordingly. 5.8. That the Government policy for export promotion and the international business practice is .....

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t is an admitted fact that goods have been cleared for export under Rule 18 of the Central Excise Rules, 2002 without following the conditions prescribed under Notification no. 21/2004-CE(NT) dated 06.092004 issued under Rule 18 of Central Excise Rule, 2002. The rebate claims were thus rejected by the original authority. The Commissioner (Appeals) also rejected the appeal filed by the applicant. Now the applicant has filed this Revision Application on grounds mentioned in para 4 and 5 above. 8. .....

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and provides for rebate from the whole of the duty paid on excisable goods used in the manufacture or processing of export goods under the said Notification. Fulfillment of the conditions laid down in the notification is mandatory. In the case of applicant they have not complied with conditions and provision of Notification No.21/2004-CE (NT) dated 6/09/2004. 9. Government notes that in the present case, it is an undisputed fact that the applicant, a unit registered with Central Excise, availed .....

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goods is governed by Rule 18 of Central Excise Rules, 2002 and Notification No.21/2004-CE(NT) dated 06.09.2004 read with Chapter 8 of CBEC's Central Excise Manual and finds that first condition laid down is that of filing of declaration which states that the manufacturer or processor shall file a declaration with the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture, describing the finished goods proposed .....

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such declaration. Though the CBEC Excise Manual of Supplementary Instructions part-V para 3.2 of Chapter 8 simply states that for the sake of convenience and transparency input and output norms notified under EXIM Policy may be accepted, this provision cannot be claimed to do away with the provisions of Notification No. 21/2004-CE(NT). Neither has the applicant at any point prior to export claimed that the input output ratio as per EXIM policy will be followed The applicant cannot claim the inp .....

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ioner of Central Excise or the Deputy Commissioner of Central Excise shall verify the correctness of the ratio of input and output mentioned in the declaration filed before commencement of export of such goods, if necessary, by calling for samples of finished goods or by inspecting such goods in the factory of manufacture or process. If after such verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise is satisfied that there is no likelihood of ev .....

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on and not following the basic procedure of export as discussed above, cannot be treated as just a minor or technical procedural lapse for the purpose of availing the benefit of rebate on the impugned goods. As such there is no force in the plea of the applicant that this lapse should be considered as a procedural lapse of technical nature which is condonable in terms of case laws cited by applicant. 11. Government notes that nature of above requirement is both a statutory condition and mandator .....

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ic/odd consequences, then it would be difficult to hold that requirement as non-mandatory. 11.2. It is a settled issue that benefit under a conditional Notification cannot be extended in case of non-fulfillment of conditions and/or non-compliance of procedure prescribed therein as held by the Apex Court in the case of Government of India Vs, Indian Tobacco Association 2005 (187) ELT 162 (S.C.); Union of India Vs. Dharmendra Textile Processors 2008(231) ELT 3 (S.C.). Also it is settled that a Not .....

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