TMI Blog2023 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... lization is not disputed there cannot be any reason for denial of substantiated benefit to the appellant for this delay which is nothing but a procedural laps. It is settled position in law that such procedural lapses are technical violation should not come in the way for extending the substantial benefit to the appellant. Reliance is placed on the decision of Hon ble Allahabad High Court in the case of M/S GLOBAL SUGAR LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [ 2016 (4) TMI 797 - ALLAHABAD HIGH COURT] where it was held that Rule 57T of the Rules is only procedural in nature. We are also of the opinion, that Modvat credit cannot be denied on a technical ground that the procedure for availing Modvat credit was not followed at the material moment of time. There are no merits in the appeal - appeal dismissed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Manish Raj , Authorised Representative for the Appellant None for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.85-CUS/APPL/LKO-2023 dated 12/01/2023 passed by Commissioner (Appeals) Customs, Central Goods Services Tax, Luck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 are beyond prescribed time limit in violation of the provisions of Notification No.FEMA 23/2000-RB dated 03.05.2000 as amended by Notification No. FEMA-176/2008- RB dated 23.07.2008. Such late realization of export proceeds has also been condoned without any penal action vide the aforesaid order, which does not appear to be proper and legal as the same is liable to be confirmed and recovered under Rule 18 of Customs Central Excise Duties Drawback Rules 2017(earlier Rule 16A of Customs, Central Excise Service Tax Drawback Rules, 1995). The appellant authority has also failed to take cognizance of this fact it would present a wrong precedence. ii) Para 1.3 of Instruction of CBIC, Department of Revenue, Ministry of Finance, New Delhi issued vide F.No.390/Misc./163/2010-JC dated 17.08.2011 stipulates that adverse judgements relating to the following should be contested irrespective of the amount involved- 1.a) Where the constitutional validity of the provisions of an Act or Rule is under challenge. 2.b) Where Notification/Instruction/ Order or Circular has been held illegal or ultra vires. Here Order No. 85-CUS/APPL/LKO/2023 dated: 12.01.2023 passed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has admitted the BRC s submitted after due verification. Approximately, out to the six BRCs four were within the time limit prescribed, and two were subsequent to that. However, there is no doubt that entire sale proceeds have been released in full neither the appeal memo says so that this amount is not released the only reason for filing this appeal is that the amount was released beyond the period prescribed. Once, the fact of realization is not disputed there cannot be any reason for denial of substantiated benefit to the appellant for this delay which is nothing but a procedural laps. It is settled position in law that such procedural lapses are technical violation should not come in the way for extending the substantial benefit to the appellant. Reliance is placed on the decision of Hon ble Allahabad High Court in the case of Global Sugar Ltd. [2016 (334) E.L.T. 604 (All.)] held as follows: 11. Sub-rule (3) of Rule 57T of the Rules clearly indicates that if the declaration is not filed within the specified period, the same can be considered after the expiry of period on sufficient cause being shown. In the instant case, the applicant clearly stated that they were not aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been entitled to the benefit of the notification had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so, had elapsed. While drawing a distinction between a procedural condition of a technical nature and a substantive condition in interpreting statute similar view was also propounded by the Apex Court in Mangalore Chemicals and Fertilizers Ltd. v. Dy. Commissioner - 1991 (55) E.L.T. 437 (S.C.). In fact, as regards rebate specifically, it is now a title law that the procedural infraction of Notifications, circulars, etc., are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirement. The core aspect or fundamental requirement for rebate is its manufacture and subsequent export. As long as this requirement is met other procedural deviations can be condoned. This view of condoning procedural infractions in favour of actual export having been established has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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