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2019 (5) TMI 503

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..... ntary instructions would arise only when the goods are removed out of the factory for export and brought back later to the factory on cancellation of the export order and not in a case where the export itself did not take place - The authorities below have without considering the above factual aspects rejected the appellant’s plea on the ground of not following the procedure which according to me is not correct. The Revenue should have enquired/investigated about, when the appellants made refund claim or thereafter, when the reason for making refund claim was clearly cancellation of the first ARE-1 - When the SCN itself refers to the fact of intimation about the non-clearance/cancellation of ARE-1 coupled with the fact of lack of e .....

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..... ice No. EI 1516500180 dated 26.09.2015 under ARE-1 No. B183/2015-16 dated 26.09.2015 after payment of central excise duty of ₹ 12,21,453.75. Based on the above, the appellant made a claim for refund of duty of ₹ 11,69,079/- by its application dated 02.11.2015 before the adjudicating authority under Section 11B of the Central Excise Act, 1944. 3. A few material dates which are relevant are as under:- S.No. Date Event Value 1 23.06.2015 ARE-1 No. B061/2015-16 11 Lakhs 2 26.09.2015 Resale thro ARE-1 B183/2015-16 12 Lakhs 3 07.10.2015 Intimation regarding cancellation of ARE-1 4 02.11.2015 Refund claim of excise duty of ₹ 11,69,079/- 5 08.01.2016 SCN 4. A SCN was issued dated 08.01.2016 by the adjudicating authority as to why .....

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..... n, if the said quantity of goods had been retained in their factory premises owing to failure of export on 23.06.2015, they should have been reflected in the opening balance of the Stock Register as on 26.09.2015. Furthermore, the removal of goods on payment of duty for export under rebate is shown whereas there is no opening balance or quantity manufactured on the date of clearance of the said goods for export ie., on 26.09.2015. The closing stock of the goods as on 26.09.2015 after removal of goods for export under Rebate, reflects 112 Nos, which reveals that neither the said goods were manufactured nor was there any opening balance. 5. An appeal was filed against the OIO before the Commissioner (Appeals-II) and the Commissioner (Appeals) .....

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..... nstance of the first ARE-1 which was cancelled, the question of re-entry of the goods would not arise at all, since the procedures and conditions under paragraph 2.1 of the supplementary instructions would arise only when the goods are removed out of the factory for export and brought back later to the factory on cancellation of the export order and not in a case where the export itself did not take place. The authorities below have without considering the above factual aspects rejected the appellant s plea on the ground of not following the procedure which according to me is not correct. Duty is required to be paid on the manufacture or production which has been admittedly paid in this case. There is no allegation by the Revenue as to proc .....

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