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TMI Blog2015 (12) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Registration Certificate No. AACCK5599HEM005 for manufacture of excisable goods falling under Chapter 85 of the CETA, 1985 and are availing Cenvat credit facility under the Cenvat Credit Rules, 2004. The applicants had filed rebate claim on 22-2-2011 for Rs. 43,47,034/-. In this regard, a show cause notice was issued on 18-5-2011 as to why the rebate should not be rejected for non-production of proper proof of export in respect of ARE-1 No. 1/16-3-2010. The adjudicating authority after following principles of natural justice has sanctioned the rebate of Rs. 3899854/- and rejected part amount of Rs. 447180/- on account of non-production of proper proof of export, out of the total amount claimed of Rs. 43,47,034/-. 3. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Law. 4.4 The applicant submits that in the case of Union of India v. Bharath Aluminium Co. Ltd., reported in 2011 (263) E.L.T. 48, the Hon'ble High Court had held that Non observance of technical nature is condonable, whereas non observance of substantive condition would disentitle the assessee any exemption and refund. 4.5 The applicant submits that it is a settled issue that the procedural lapse cannot take away the substantial right and hence the order passed by the Commissioner (Appeals) is revenue biased and not sustainable under Law. 4.6 The Commissioner (Appeals) has not disputed the non-export of goods and nor the payment of duty on the goods cleared. The mere not mentioning of the ARE-1 on the shipping document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is also not disputed that the duty is not paid on the goods exported. 5.8 The applicant submits that the order is revenue biased and liable for setting aside in the interest of equity and justice. 6. Government has carefully gone through the relevant case records and perused the Order-in-Original Order-in-Appeal. 7. On perusal of records, Government observes that out of total rebate claim of Rs. 4347043/- in respect of 10 ARE-1 forms, the original authority sanctioned the claim of Rs. 3899854/- in respect of 9 ARE-1 and rejected the claim of Rs. 447180/- in respect of one ARE-1 No. 1/16-3-2010 for non-production of proof of export. The ground of rejection was that the impugned ARE-1 No. is not having proper endorseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in this case, goods are not exported direct from factory of manufacture as required under Condition 2(a) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. C.B.E. & C. vide Circular No. 294/10/97-CX, dated 30-1-1997 has relaxed the condition of direct export of goods from factory of manufacturer subject to the condition that procedure prescribed in the said circular is followed. As per said circular, the exporter desiring to export duty paid excisable goods (capable of being clearly identified) which are in original factory packed condition/not processed in any manner after being cleared from factory; stored outside the place of manufacture should make an application to the Superintendent of Central Excise in-charge of Range und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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