TaxTMI 
TaxTMI 
2013 (7) TMI 73
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....he Commissioner of Central Excise, Surat-II and an appeal was filed by the department before Commissioner (Appeals) who after condoning the procedural lapses of non-filing of original copy of ARE-1 in terms of Paras 2.1 and 8.3 of Part-I of Chapter 8 of C.B.E. & C. Excise Manual of Supplementary Instructions, upheld the impugned order-in-original and rejected the appeal filed by the department. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The Commissioner (Appeals) failed to take note that in the case of ARE-1 No. 09/08-09, dated 3-6-2008 (sic) the assessee has not submitted original copy of ARE-1 and submitted the two triplicate copies (pink copies) along with the rebate claims. It is also noticed that one pink copy of ARE-1 was prepared later on. Preparing two pink copies of ARE-1s, the assessee might jeopardize revenue by availing double benefit of rebate claim. 4.2 As per para 2.1 & 8.3 of part-I of Chapter 8 of C.B.E. & C.'s Excise Manual of Supplementary Instructions, ARE-1 is the export document which shall ....
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....e of original ARE-1 Form duly certified by Customs. Commissioner (Appeals) has treated the non-submission of ARE-1 original as procedural lapse and upheld the order-in-original. In this regard, the relevant provision of Notification C.B.E. & C. Instruction are extracted below for proper understanding of issue : 8.1 Paras 8.2, 8.3 and 8.4 of part I of Chapter 8 of C.B.E. & C. Excise Manual of Supplementary Instructions stipulates as under :- "8.2 It shall be essential for the exporter to indicate on the ARE-1 at the time of removal of export goods the office and its complete address with which they intend to file claim of rebate. 8.3 The following documents shall be required for filing claim of rebate : (i) A request on the letterhead of the exporter containing claim of rebate, ARE-1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each ARE-1 and its calculations, (ii) Original copy of the ARE-1, (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] 8.4 After satisfying himself th....
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....riginal and duplicate copies of ARE-1 will be handed over to exporter who will present the same before customs. The triplicate copy of application will be sent to the office with whom rebate claim is to be filed. On arrival at place of export, the goods shall be presented to customs together with original duplicate and quadruplicate (optional) copies of the ARE-1 application. The Customs who shall examine the consignments with the particulars as cited in the application and if they find that the same are correct and exportable in accordance with law, shall allow export thereof and certify on the application that the goods have been duly exported citing the Shipping Bill number and date & other particulars of export. The Customs officers shall return the original copy of the ARE-1 to the exporter and forward duplicate copy of ARE-1 either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the ARE-1 application. The rebate sanctioning authority shall compare the duplicate copy of ARE-1 received from Customs with original copy of ARE-1 received from exporter and also with Triplicate copy of ARE-1 received from Superintendent of Centra....
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....dorsed by customs, the export of duty paid goods cannot be established which is fundamental requirement for sanctioning the rebate claim under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 9. Government notes that nature of above requirement is a statutory condition. The submission of application for removal of export goods in ARE-1 form is must because such leniencies would lead to possible fraud of claiming an alternatively available benefit which may amount to additional/double benefit. This has never been the policy of the Government to allow unintended benefit. Hon'ble Supreme Court in case of Sharif-ud-Din. Abdul Gani - AIR 1980 SC (3403) & 2003 (156) E.L.T. (178) (Bombay) (sic) has observed that distinction between required forms and other declarations of compulsory nature and/or simple technical nature is to be judiciously done. When non-compliance of said requirement leads to any specific/odd consequences then it would be difficult to hold that requirement as non-mandatory. As such there is no force in the plea of the applicant that this lapse should be considered on a procedural lapse of technical nature which....