TaxTMI 
TaxTMI 
2011 (5) TMI 719
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....ry premises under erstwhile Notification No. 41/2001-C.E. (N.T.), dated 26-6-2001 (Now Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004. They had submitted the relevant purchase invoices, copies of the Bills of Lading, Shipping Bills, ARE-1s and BRCs as proof of export in support of their claim. Personal hearing was granted to them and they submitted that the goods were removed from the factory under Notification No. 41/2001-C.E. (N.T.), dated 26-6-2001 and were exported within six months under ARE-1 instead of ARE-2 and requested to condone the procedural lapses on the grounds that the goods had been exported and value has been realized. The adjudicating authority after considering the submissions of the appellants rejected the rebate claim on the ground that applicant was availing input stage cenvat credit and had not fulfilled the conditions as laid down in Notification No. 41/02-C.E. (N.T.), dated 26-6-01. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeal), who allowed the same by condoning all the procedural lapses. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant filed this Revision Applic....
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....id clause permits removal of waste on payment of duty if such waste is manufactured or processed outside the factory of the applicant seeking rebate. Therefore, removal of waste, or sale thereof in home or domestic market, does not prohibit or bar a claim for rebate under the said Rule or notification. Paragraph 4(c) does refer to payment of duty but the said clause applies when there is removal of material or the same is partially proceed at the location different from or outside the factory of the applicant. 16. In paragraph 10 of the impugned order, reference was made to the case law cited by the petitioner that procedural lapses may be ignored, if there is substantial proof of export. The petitioner had not submitted Form No. ARE-2. The said form requires certification of the Customs Officer, but this aspect has not been examined by the Revisionary Authority. Constitutional Bench of the Supreme Court in a recent judgment in the Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and Ors. - (2011) 1 SCC 236, have examined the question of interpretation of exemption or concession provision and whether it is to be strictly construed or not. After referring t....
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.... applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential." 18. Learned Counsel for Petitioner had extensively referred to decision of Bombay High Court in Repro India Ltd. v. Union of India, 2009 (235) E.L.T. 614 (Bom). The said decision deals with Rule 6 of the Rules which is not the subject matter of the present writ petition. However, while interpreting Rule 6 with reference to exports, certain observations have been made. As we are remanding the matter back, the observations made in the said judgment which also t....
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....: "(6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either - (i) ............... (ii) ............... (iii) ............... (iv) ............... (v) Cleared for export under Bond in terms of provisions of the Central Excise Rules, 2002." In para (8) of the said judgment, the Hon'ble High Court has observed that Rule 6(6)(v) has been consciously and expressly enacted with the specific objective to ensure that duty is not levied even on inputs going to export products. It allows the assessee to take cenvat credit on the inputs used in the export product, and allow the assessee to adjust it for payment of duty on other products. Further, the Hon'ble Delhi High Court in this case in W.P. No. 7033 has observed that as per clause (iii) of paragraph 1.5 of Part-V of Chapter 8 of C.B.E.C. E....