TaxTMI 
TaxTMI 
TaxTMI 
2011 (2) TMI 704
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....rebate claim was Rs. 6,62,22,485/-. 2.2 The Asstt. Commissioner, Central excise and Customs Nanded Division vide order-in-original No. 50/R/2009 dated 12-3-2010 rejected all the 10 rebate claims amounting to Rs. 6,62,22,485/- filed by the applicants. The Asstt. Commissioner held that the rebate claims were filed under Rule 18 of Central Excise Rules, 2002 and in view of Rule 14 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, no rebate claim shall be granted under Rule 18 of the Central Excise Rules, 2002 as the applicants were paying duty on notified goods under Notification No. 42/2008-C.E., dated 1-7-08. The adjudicating authority further held that the applicants had not followed statutory conditions as prescribed under Notification No. 32/2008- C.E.(N.T.), dated 28-8-08 and also not followed the procedure prescribed under Notification No. 19/2004-C.E. (N.T.), dated 6-9-04. As per para 5.2.1 of Chapter 8 of CBEC's Central Excise Manual of Supplementary Instructions, 2005, where goods are not exported directly from the factory of manufacturer of warehouse, the triplicate copy of application shall be sent by the Superintendent h....
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....his regard attention is invited towards Calcutta High Court judgment in the case of 1993 (68) E.L.T. 50 (Cal.) - Fitwell Fastner (India) Pvt. Ltd. v. CC wherein it has been held that discrimination as between two assesses located in two different cities is unfair and improper and violative of Article 14 of Constitution of India. 4.4 The Asstt. Commissioner has taken a stand that applicant has filed rebate claims under Rule 18 of Central Excise Rules, 2002 and for a unit working under Pan Masala Packing Machines (Capacity) Determination and Collection of Duty) Rules, 2008 no rebate can be sanctioned under Rule 18 of Central Excise Rules, 2002. This stand of Asstt. Commissioner has also been upheld by Commissioner (Appeals). This was not a ground for rejection of rebate claim in the SCN. The Asstt. Commissioner has travelled beyond the scope of SCN and thus on this ground alone the order-in-original should have been set aside with consequential relief to applicant by the Commissioner (Appeals). The above understanding of Asstt. Commissioner is based on Rule 14 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 read with Notification No. 3....
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.... 4.5 The show cause notice dated 12-2-10 proposed rejection of the rebate claim on the ground that applicant had not followed scrupulously the procedure prescribed under Notification 19/2004-C.E.(N.T.), dated 6-9-04 read with Circular No. 736/52/2003/CX., dated 11-8-03 and 741/57/2003/CX., dated 2-9-03. Applicant at the first place submits that it has fulfilled all the requirements of law including the requirements under Notification No. 19/2004-C.E.(N.T.), dated 6-9-04 for granting rebate under Rule 18 of Central Excise Rules, 2002. Therefore, applicant submits that under the relevant notification there is no condition that merchant exporter desirous of exporting the goods on which claim of rebate shall be made under Rule 18 must get the goods sealed by Central Excise Officer. Similarly, there is no condition that the triplicate and quadruplicate copies of ARE-1 should be given to jurisdictional excise authorities within 24 hours of export. Therefore the requirements being insisted upon are beyond the authority of law. 4.6 Further under para (3)(a) of Notification 19/2004 a procedure for sealing of goods and examination at the place of dispatch by central excise officer....
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....nd Drugs Department for the storage of food items. Therefore this condition is also fulfilled. The finding of Asstt. Commissioner that goods must be directly exported from factory and which has been upheld by Commissioner (Appeals) is thus erroneous. (iv) ------------------------ (v) ------------------------ (vi) ------------------------ (vii) ------------------------ (viii) ------------------------ (ix) The procedure as laid down in the Notification No. 19/2004-C.E.(N.T.) dated 6-9-04 shall be followed mutatis mutandis; Comment : We have already clarified that we have followed the procedure laid down in 19/2004 mutatis mutandis. (x) The exporter shall also indicate the number of pouches of excisable goods exported in the invoice, ARE-1 and any other document used for export. Comment : Admittedly the invoice, ARE-1 and other documents used for export indicate the number of pouches of excisable goods exported. Therefore applicant submits that it has fulfilled all the requireme....
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....ve. Therefore goods exported by us through merchant exporter have actually been examined at the place of export on behalf of officer of Central Excise under para 7.3 and thus Central Excise Officer cannot doubt the correlation between the goods shown on ARE-1 and goods exported. The officer of the revenue department after satisfying themselves with the identity of goods has given let export order under para 7.4 of the manual. The said goods have been examined not only for the purposes of Customs but also for Central Excise purposes to establish the identity and quantity, i.e. the goods which are brought in the Customs are for export on an ARE-1 are the same, which were cleared from the factory and shown on the invoices. The result of examination and verification by Customs officer has been incorporated on ARE-1 in the form of endorsement from Customs side. 4.9 The paragraph 8 of Part I of Chapter 8 of CBEC's Central Excise Manual of Supplementary Instructions, 2005 which has been issued under the current relevant law post enactment of Central Excise Rules, 2002 provides complete guidelines for sanction of rebate claims. It is worth mentioning that said instructions issued by....
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....them. 4.12 ARE-1 mentions the name of manufacturer, description of the goods alongwith mark and Nos. of the goods. The goods cleared by us on our invoices are same which are reflected on ARE-1 which can be correlated with description of the goods along with mark Nos. of the goods reflected in our records and mentioned on ARE-1 and the invoice issued by merchant exporter. Further the goods as reflected on ARE-1 has been physically verified by Customs for the purposes of Central excise under paragraph 7.3 of CBEC Manual to establish the identity and quantity, i.e. the goods brought in the Customs area for export on an ARE-1 are the same which were cleared from the factory. Once the goods stand physically verified by customs on behalf of Central Excise Officers, the identity of goods stands established beyond doubt. 4.13 The applicant has a preliminary objection on the corrigendum dated 27-2-2010. The revenue has issued this corrigendum after getting our detailed reply and after going through our reply. The applicant submits that after receiving our reply, revenue has no legal right to raise fresh grounds for rejection of our rebate claim. In Mahindra & Mahindra Ltd v. CCE....
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....le for the rebate as substantial requirement of law namely duty paid character of goods and their export has been proved beyond doubt. 5. The case was listed for personal hearing on 2-2-2011 & 18-2-2011. Shri Pramod Kumar Rai, Advocate and Shri S.N. Panda, Consultant appeared on 2-2-2011 on behalf of the applicant and reiterated the grounds of revision application. Shri Sushil Chandra, Asstt. Commissioner appeared on 18-2-2011 on behalf of the respondent department and reiterated the submission made in their written reply dated 17-2-2011. The submissions made in their letter dated 17-2-2011 are as under : 5.1 It is a fact on record and it is legal requirement that the goods in question were subjected to duty as per Notification No. 42/2008-C.E., dated 1-7-08. the goods were manufactured by the assessee and the goods were exported by M/s. Sanket Industries, Jalna as merchant exporter. Notification No. 32/2008-C.E. (N.T.) dated 28-8-08 is issued under Rule 18 of Central Excise Rules, 2002 read with Rule 14 of Pan Masala Packing Machines Rules, 2008 wherein certain conditions, limitations & procedures numbering (i) to (x) were prescribed. In the instant matter the conditio....
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....exported out of India. It was further emphasized that applicant is paying duty under compounded levy scheme and for the relevant period whatever was the duty liability that has been quantified and paid (in case of delayed payment at times, paid with interest) in full, which is evident from the certificate given by Range Superintendent. 7. Government has considered both oral and written submissions of both the applicant and the respondent and also perused the orders passed by the lower authorities. 8. From the perusal of records, Government observes that the applicant is a registered manufacturer of Pan Masala and Gutka and was working under Compound Levy Scheme. They exported the goods through a Merchant Exporter M/s. Sanket Industries, Jalna under claim of rebate on various ARE-1s and filed the rebate claims with the juirisdictional Assistant Commissioner. The rebate claims were rejected mainly on the ground that they did not submit/got endorsed the triplicate copy of the ARE-1s to the concerned Range Superintendent certifying the duty paid nature of the exported goods and the goods were not corelatable with the goods cleared from the factory of manufacture as the good....
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....2009. The Excise Duty for the month of Oct., Nov. & Dec. -2009 has already been paid by M/s. Sanket Food Products Pvt. Ltd. (Unit-II) Gut No. 186, Dawalwadi, Tq Badnapur, Jalna along with interest before the filing of rebate claim against ARE-1 No. 01 to ARE-1 No. 10." 11. Duty payment on the goods cleared under the relevant ARE-1s for export is made before filing of the rebate claims. They also produced the letters pertaining to each ARE-1 duly signed by the Superintendent Central Excise, Range Jalna addressed to the Assistant Commissioner, Central Excise, Nanded certifying the duty payment against the relevant ARE-1s on which the goods were exported and rebate was claimed. In respect of each ARE-1, following certificate is given by Central Excise Range Superintendent : "Assessee have exported the goods from M/s. Sanket Industries A9/25 Addl. MIDC Jalna and the foods have been manufactured by M/s. Sanket Food Products Pvt. Ltd., Gut No. 186, Dawalawadi, Tq. Badnapur, Distt Jalna." This confirmed the duty paid nature of the exported goods. The substantial requirement is that the goods should be duty paid. Once it is proved the procedural lapse for not getting the triplicate....
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....500 bags/cartons), Net Weight (13500 kgs.) Gross Weight (16800 kgms) etc. fully tally with each other which clearly establishes that the goods cleared from the factory of manufacture on payment of duty has actually been exported which meets the substantial/mandatory condition of the export of the duty paid goods. In these cases, as per CBEC Circular, Condition of direct export from the factory of manufacture or warehouse is condonable. 14. Government further observes that the procedure for examination of the goods at the place of export has been prescribed in para 7 of Chapter 8 of CBEC's Central excise Manual of Supplementary Instructions, 2005. The relevant Page 7.3 and 7.4 reads as under : 7.3 The goods are examined by the Customs for the purposes of Central Excise to establish the identity and quantity, i.e. the goods brought in the Customs area for export on an ARE-1 are the same which were cleared from the factory. The Customs authorities also examine the goods for Customs purposes such as verifying for certain export incentives such as drawback, DEEC, DEPB or for determining exportability of the goods. 7.7 For Central Excise purposes, the officers of Custom....
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....Appeals), Rajkot. In this case also goods were exported from a place other than factory of manufacture/warehouse and triplicate copy was not endorsed on the basis of the certificate of Range Superintendent and as the goods exported fully tallying with the goods cleared from the factory of manufacture by way of Marking, Batch No. and other particulars. Government, vide said order had allowed the rebate in terms of the CBEC Circular No. 294/10-97-C.X., dated 30-1-1997. 17. In this regard, Govt. further observes that rebate/drawback etc. are export-oriented schemes and unduly restricted and technical interpretation of procedure etc. is to be avoided in order not to defeat the very purpose of such schemes which serve as export incentive to boost export and earn foreign exchange and in case the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical breaches. In Suksha International v. UOI, 1989 (39) E.L.T. 503 (S.C.), the Hon'ble Supreme Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what the policy gives....