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TMI Blog2013 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner-Company engaged in manufacturing of excisable goods i.e. lubricant oil exported the same on payment of duty. That the said goods were exported upon filing 4 ARE1s. According to the petitioners the said goods were exported directly from their factory. According to the petitioners the original as well as duplicate copies of ARE1s were lost/stolen for which an FIR came to be lodged with Nahva Sheva Police Station, Thane. That the petitioners submitted an application before the appropriate Authority claiming rebate of duty of ₹ 3,63,089/ under the provisions of Rule 18 of the Rules on 30-12-2009. That along with the application for rebate of duty, the petitioners submitted the triplicate copy of 4 ARE1s and other documents such as Mate receipts, bills of lading and shipping bills in support of their claim that as such the goods were exported from their factory on payment of duty. That on the petitioners' rebate claim, the Deputy Commissioner of Central Excise and Customs Division-III - Respondent No. 3 issued a show cause notice on 13-1-2010 raising objection that the claim has been submitted after the expiry of stipulated period of six months fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and directed their rebate claims shall be sanctioned in respect of those ARE1s where the goods were examined and sealed by Central Excise Officers in containers and same container number and customs seal number are mentioned in corresponding shipping bill, Mate Receipt and Bill of lading. 3.3 Feeling aggrieved and dissatisfied with the order passed by the Commissioner (Appeals) dated 22-7-2010 in directing to sanction the rebate claims of the petitioners with respect to ARE1s as mentioned in Para 5 of the order-in-appeal, the Revenue preferred Revision Application before the Revisional Authority - Joint Secretary (Revision Application) and by impugned order the Revisional Authority has allowed the said revision application quashing and setting aside the order dated 22-7-2010 passed by the Commissioner (Appeals) and rejected the rebate claim of the petitioners solely on the ground that as the petitioner-exporter has not produced the original and duplicate copies of ARE1s, which is required to be produced along with the rebate claim as per Paras 8.3 and 8.4 of CBEC's Excise Manual of Supplementary Instructions, which is held to be mandatory in nature, the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave, learned advocate has appeared on behalf of the respective petitioners and Shri R.J. Oza, learned counsel has appeared on behalf of the Department in Special Civil Application No. 1265/2013 and Shri Gaurang Bhatt, learned Central Government Standing Counsel has appeared on behalf of the Department in Special Civil Application No. 17481/2012. 4.1 Shri Gupta, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that the Revisional Authority has materially erred in quashing and setting aside the orders passed by the Commissioner (Appeals) and rejecting the rebate claim of the petitioners solely on the ground that the petitioners-exporters have not produced the original and duplicate copies of ARE1s along with the rebate claim. 4.2 It is submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that as such on appreciation of the other documents on record the Commissioner (Appeals) had specifically given the finding that the actual export and the payment of duty has been evident and when thereafter, the Commissioner (Appeals) passed an order sanctioning the rebate claim and that too with respect to those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite nonproduction of the original and duplicate copies of ARE1s, the exporter shall be entitled to rebate of duty if all other conditions as mentioned in clause (2) of the notifications under Central Excise Rule 18 are complied with. 4.4 It is further submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that for claiming/getting the rebate of duty, production of original and duplicate copies of ARE1s is not condition precedent. It is submitted that as such production of original and duplicate copies of ARE1s is a procedural one along with other corresponding supporting documents so as to satisfy the authority to consider the rebate claim of the exporter whether in fact excisable goods have been exported after payment of duty directly from the factory or warehouse or not as claimed by the exporter. It is submitted that as such the conditions and limitations for rebate of duty are mentioned in Clause 2 of the notifications under Central Excise Rule 18, in which no such condition of production of the original and duplicate copies of ARE1s is mentioned. 4.5 It is further submitted by Shri Gupta, learned advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Authority. It is submitted that as such there is no finding by the Revisional Authority in the impugned order that neither there is any export of excisable goods on payment of duty, from the factory nor even the export on payment of duty under the concerned ARE1s are even doubted. It is submitted that the Revisional Authority has denied the rebate claims solely on the ground that along with the rebate claim, the exporter has not submitted the original and duplicate copies of ARE1s, which cannot be sustained even on facts of law, more particularly, the finding given by the Commissioner (Appeals) with respect to actual export on payment of duty in presence of the concerned officers of the Department, from the factory. Making above submissions and relying upon the aforesaid decisions of the Bombay High Court, it is requested to allow the present Special Civil Applications. 5. Both these petitions are opposed by Shri R.J. Oza, learned counsel and Shri Gaurang Bhatt, learned Central Government Standing Counsel appearing on behalf of the Department. It is submitted by learned counsel appearing on behalf of the department that as such and in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate claim as per the statutory requirement of procedure and therefore, in absence of submission of the original and duplicate copies of ARE1s, the exporter shall not be entitled to the rebate claim and therefore, the Revisional Authority has rightly rejected the rebate claim of the respective petitioners. It is submitted as rightly observed by the Revisional Authority, ARE1 is basic essential document for export of duty [paid goods] under the rebate claim. It is submitted that the custom certification on the said copy of ARE1s as such proves the export of goods and therefore, in absence of the said original and duplicate copies of ARE1s; the rebate sanctioning Authority has no chance to compare those documents with triplicate copy of ARE1s and therefore, he cannot satisfy himself of the correctness of the rebate claim. Therefore, it is submitted that submission of original and duplicate copies of ARE1s duly endorsed establishes the export of duty paid goods and therefore, essential requirement cannot be done away with. 5.2 It is further submitted by learned counsel appearing on behalf of the Department that as rightly observed by the Revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utan. The said notification also provides for conditions and limitations on fulfillment of which they shall be granted rebate of whole of the duty paid on excisable goods falling under the Ist Schedule to the Central Excise Tariff Act, 1985. That the conditions and limitations provided in Clause (2) of the said notification reads as under : (2) Conditions and limitations : (a) that the excisable goods shall be exported after payment of duty, directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order; (b) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow; (c) that the excisable goods supplied as ship's stores for consumption on board a vessel bound for any foreign port are in such quantities as the Commissioner of Customs at the port of shipment may consider reasonable; (d) the rebate claim by filing electronic declaration shall be allowed from such place of export and such date, as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Para 8.2, it shall be essential for the exporter to indicate on ARE1 at the time of removal of export goods the office and its complete address with which they intend to file the claim of rebate and as per Para 8.3, the exporter is required to submit following documents for filing the claim of rebate. (i) A request on the letterhead of the exporter containing claim of rebate, ARE1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each ARE1 and its calculations, (ii) Original copy of the ARE1, (iii) Invoice issued under Rule 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] Thus, as per the aforesaid procedure, exporter claiming rebate of duty paid is required to submit the aforesaid documents which includes the original copy of ARE1. It cannot be disputed that the aforesaid documents are required to be submitted along with the rebate claim so as to satisfy the concerned Authority considering the rebate claim whether in fact the conditions and limitations as mentioned in the aforesaid notification f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the documents produced by the appellant viz. ARE1s, Mate Receipts, shipping bills and bills of lading. It is evident from ARE1 dated 27-4-2009 that the goods were stuffed in the factory by Central Excise Officers in the container No. GLDU 5338898 by customs seal No. 002036. The same container No. and customs seal No. are mentioned in corresponding Mate Receipt, Bill of lading and shipping bill. It is thus evident that the goods against same ARE1 were exported and hence substantial condition of payment of duty and export of duty paid goods are satisfied. Therefore, the rebate claim cannot be rejected on the ground that procedural requirements as per par 8.3 and 8.4 of CBEC's Excise Manual of Supplementary Instructions could not be fulfilled. 4.3 I find that CESTAT in cases of Model Buckets & Attachments Pvt. Ltd. v. CCE, Belgaum as reported in 2007 (217) E.L.T. 264 (Tri.) and CCE v. Kanwal Engineers as reported in 1996 (87) E.L.T. 141 (Tri.) held that if the goods are stuffed in the factory by Central Excise Officers, the supporting documents like shipping bill, mate receipt, bill of lading etc. can be used to establish export of goods if original and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of ARE1s are very important and vital documents so as to enable the Authority to satisfy the claim of the exporter and to compare the same along with the other documents. However, it is required to be noted that as per the requirement of law, submission/production of original and duplicate copies of ARE1 along with the rebate claim is not the only requirement. As observed herein above, along with the rebate claim, an exporter claiming rebate of duty is required to produce number of other documents such as shipping bill, bills of lading, mate receipt etc. If the intention was to produce and consider the original and duplicate of ARE1, only in that case, there is no requirement of production of other documents. Under the circumstances, merely because the exporter could not produce/submit along with the rebate claim, the original and duplicate copies of ARE1 but has produced other documents like mate receipt, shipping bills, bills of lading etc. and from the supporting and corresponding documents is able to prove and establish that the excisable goods have in fact been exported on payment of duty from its factory/warehouses and all other conditions and limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods on payment of duty directly from the factory and/or warehouse is not established and proved, in that case, the Authority would be justified in rejecting the rebate claim. However, merely on the ground of non-submission or original and duplicate ARE1s on that ground alone the rebate claim of an exporter cannot be rejected. However, even for claiming rebate of duty, the exporter is required to satisfy from other documents produced that all the conditions and limitations mentioned in Clause (2) of the notification issue under Rule 18 are satisfied and in fact the excisable goods have been exported on payment of duty from its factory or warehouse and other limitations and conditions are satisfied. In the present case, as stated herein above, on facts and on appreciation of other documents like mate receipt, shipping bills, bills of lading etc., Commissioner (Appeals) had given the finding which is reproduced herein above and the said observation and finding of the Commissioner (Appeals) with respect to the actual export of the exported goods on payment of duty, from their factories have not been upset by the Revisional Authority. 6.5 At this stage the decision of the Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars of the duty paid and after sealing the packet or container, he is required to return the original and duplicate copies of the application to the exporter. The triplicate copy is to be sent to the officer with whom a rebate claim is to be filed either by post or by handing it over to the exporter in a tamper proof sealed cover. After the goods arrive at the place of export, they are presented together with the original and duplicate copies of the application to the Commissioner of Customs. The Commissioner of Customs after examining the consignment with the particulars cited in the application is to allow the export if he finds that the particulars are correct and to certify on the copies of the application that the goods have been duly exported. The claim for rebate of duty is presented to the Assistant or Deputy Commissioner of Central Excise who has to compare the duplicate copy of the application received from the officer of customs with the original copy received from the exporter and the triplicate received from the central excise officer. 11. The Manual of Instructions that has been issued by the CBEC specifies the documents which are required for filing a claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments may merely belong to the area of procedure and it would be erroneous to attach equal importance to the nonobservance of all conditions irrespective of the purposes which they were intended to serve [at Paragraph 11]. The Supreme Court held as follows : "The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some other may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve." 7. Considering the aforesaid facts and circumstances, more particularly, the finding given by the Commissioner (Appeals), it is not in dispute that all other conditions and limitations mentioned in Clause (2) of the notifications are satisfied and the rebate claim have been rejected solely on the ground of non-submission of the original and duplicate ARE1s, the impugned order passed by the Revisional Authority rejecting the rebate claim of the respective petitioners are hereby quashed and set aside and it is held that the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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