TaxTMI 
TaxTMI 
2014 (12) TMI 781
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....the applicant who are merchant exporters have filed various rebate claims under Rule 18 of the said Rules read with, Notification No.19/2004-CE (NT) dated 6.09.2004 for the duty paid on goods exported. In, cases mentioned at Sr.Nos. (2) & (3), the rebate sanctioning authority while rejecting the claims observed that: a) the goods exported i.e. Scrap of different metals have been cleared/exported from a premises other than manufacturing unit. b) the excisable goods (scrap) obtained after breaking of ship does not have a unique or a standard identification mark which can be accepted in the normal business practice universally. Thus they were not clearly identifiable and were not cleared in packed condition. They are not eligible for waiver from direct exports from the factory or warehouse as envisaged under Board`s Circular dated 30.01.97. c) no verification of the goods as per Para 8.3 of the Board`s Circular has been done for identifying the goods. The Superintendent in charge has not certified the correctness of duty payment on Triplicate copy of AREIs. d) further the rebate sanctioning authority observed that the exporter has not taken any prior permission from jurisd....
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....ses. In this regard, the Applicant has also drawn the attention of the respondent to the findings of the very same person i.e. Adjudicating Authority in the earlier order-in-original No.2287/11-12 dated 27.2.2012 whereby he had sanctioned the Rebate Maim amounting to Rs. 8,34,245/- in identical set of facts. 4.2 In fact, it is a fact on record that the applicant had applied to the jurisdictional Central Excise Division for permission to 'export from their premises at A/554, MIDC, Mahape, Navi Mumbai, well, in advance vide their letter, dated 21st April, 2011, duly acknowledged by the Department on 25th April, 2011. Further, in response to the said application, the Department has permitted the Applicant to expert the goods from their premises at A/554, MIDC, Mahape, Nadi Mumbai vide the letter F.No V/Gen(30) 8/Tech. I & II/Neptunus/Bel- III/11-12/2006 dated 20.05.2011 (issued on 23. 05.2011) with instructions to follow procedure under Board Circular dated 30.01.1997. Copy of the said Application dated 21.04.2011 & the Department's Permission dated 23.05.2011 are annexed. Under the above facts and circumstances and the documentary evidence adduced, which was already ....
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....epted by the same rebate sanctioning authority in earlier case where he himself has sanctioned the rebate in identical case wide Order-in-Original No. 2287/11-12 dated 27-02-2012. It is surprising that the respondent has failed to take cognizance of the documentary evidence produced by the applicant by way of two contrary orders in as much as in the earlier order dated 27-02-2012 wherein rebate was sanctioned by the very same authority, the description of goods is also mentioned as "waste & scrap of propeller" obtained by breaking of imported ship. In this scenario, it is beyond comprehension as to when the above facts are patent before the respondent, why has the respondent failed to comment on the said fact patently on record and has merely repeated the allegations in the order-in- original without applying its own mind to reject the instant appeal. 4.4 The applicant, in their application dated 21-04-2011 had clearly mentioned that for the purpose of identification of the goods, they would be marking each of the goods (Scrap of Ship Propeller parts), a Running Serial Number for each Financial Year starting with "NPRS 01 to NPPS 42,03,04" and so on, with Oil paint. In fact, the....
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....ich by itself is a testimony to the fact that the exports have taken place under the supervision of the Central Excise Officers. The respondent has failed to note that in case where exports are done under self sealing, there is no endorsement of the Central Excise Officers on the reverse of the first and second copies of the ARE-1 forms, as in the case of the ARE-1 under dispute. Even if this did not satisfy the respondent, he ought to have known that for every export supervised by the Central Excise Officers, the exporter has to necessarily pay the merchant over-time fees to the Department, as is also specified in Para 8.5 of the Circular dated 30.01.1997. The respondent has ignored the palpable evidence submitted by the applicant by way of a copy of the statement of exports (ARE-1 Wise) wherein the subject exports are reflected and the copy of the On-line GAR 7 Challan dated 04-01-2013 for payment of Merchant Overtime Fees of Rs. 41,335.00 to the department, which includes the Merchant Overtime fees for the subject consignments, alleged to have been not supervised by the Central excise Officer as no patent endorsement of having done the same was put by the Officers. 4.6 The....
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..... Thus, the respondent has thrown all reasoning and principles of sound jurisprudence to the winds and has taken a mechanical and negative approach to somehow justify the blatantly illegal rejection of the applicant's genuine rebate claims. The impugned Order, therefore, is blatantly illegal, seeks to ignore vital evidence and make mockery of the directions of.an Officer, as high in rank as the Chief Commissioner and needs to be set aside as bad in law. 4.8 Further, in Para 10 of the Order dated 27-12-2012, the Commissioner (Appeals) has stated that the applicant had submitted copies of the relevant ARE-1's discussed in the relevant Order-in-Originals and on perusal of the same it was seen that the inspector & superintendent in-charge had put their dated signature on the reverse side of the ARE-1's which means that they have identified the exported goods with the goods purchased and then allowed the goods to be exported. In Para 11 of the above Order-in-appeal dated 27-12-2012, the Commissioner (Appeals) has stated that since although the Officers had signed the ARE-' farms on the reverse but no endorsement as to what had been verified was not written in the said....
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....licable by the respondent • 2012(281)ELT 102(Tri-Mumbai) Cipla Ltd. Vs. CCE, Pune-III • 2008 (230) ELT 260 (Tri-l'4umbai) CCE, Nagpur Vs. Jaikisan SSK Ltd. 4.10 The respondent has observed that the plea put forth by the Applicant that subsequent rebate claims on identical facts had been sanctioned to the applicant could not be entertained as scrutiny of subsequent claims was outside the respondent purview and no comments could be offered on the identical status of the case or otherwise more so when the documents of the case were not on his record. The respondent has also contended that the earlier rebate claims sanctioned vide Order No. Belapur/Dn III/R-V/SBS/AC/12-13 dated 21.5.2012, where in appeal by the department, the respondents office had allowed the departmental appeal vide order No.BC/369RGD/12-13 dated 31.10.12, thereby rejecting the rebate claims which were earlier sanctioned vide Order dated 21-05-2012 and that the Applicant had conveniently chosen to forget the same. The Respondent has also relied upon the Honourable Apex Court judgement in the case of CCE, Chandigarh Vs Doaba Steel Rolling Mills reported in 2011 (269) ELT 298 (SC) rega....
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....ed a Revision Application and for the period from February, 2012 to July, 2012 covered under present Order-in-Appeal No.SDK/133/RGD(R}/2013-14 dated 20.08.2013, issued on 21-08-2013 whereas all identical rebate claims for previous period as well as subsequent period have been sanctioned and are also currently being sanctioned. There cannot be such inconsistent and diverse decisions in the same matter as a matter of judicial discipline. In this regard, the applicant wish to rely upon the: following settled case laws: • 2006(197) ELT 469 (SC) in the Supreme Court of India Leader Engg. Works Vs CCE, Chandigarh • 2012(279) ELT 21(HP) in the High court of llimachal Pradesh at Shimla Pearl Enterprises Vs UOI 5. Personal hearing scheduled in this case on 2.9.2014 was attended by Shri R.K. Sharma, Advocate and Shri Vijay Chawla, Consultant on behalf of the applicant who reiterated the grounds of revision application. 6. Government has carefully gone through the relevant case records available in case file, oral & written submissions and perused the impugned orders-in-original and orders-in-appeal. 7. Government observes that the applicant is a merchant ex....
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....tion in writing to the superintendent of Central Excise incharge of the Range under whose jurisdiction such goods are stored This application should be accompanied with form AR4 duly completed in sixtuplicate, the invoice on which they have purchased the goods from the manufacturer or his dealer and furnish the following information:- (a) Name of the exporter (b) Full description of excisable goods along with marks and / or numbers (c) Name of the manufacturer of excisable goods. (d) Number and date of the duty paying document prescribed under Rule 52A under which the excisable goods are cleared from the factory and the quantity cleared (Photo copy of invoice/ duty paying document by submitted). (e) The rate of duty and the amount of duty paid on, excisable goods 8.2 The AR4 form should have a progressive number commencing with SL. No. for each financial year in respect of each exporter with a distinguishing mark. Se....
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.... name of the exporter, Range/ Division/ Commissionerate indicating name of the exporter godown, warehouse are located and where AR-4 is prepared, AR-4 No and date, description of items, corresponding invoice No. of the manufacturer, remarks regarding verification, date of dispatch of triplicate& quadruplicate copy. iii) the quintuplicate copy is to be retained by the Superintendent Incharge of the range from where the goods have been exported for his record iv) the sixtuplicate copy will be given to the exporter for his own record." From perusal of above, Government finds that if an exporter desired to export the goods from a factory or warehouse, he needs to apply for examination of the goods at such place and gets the same examined by the jurisdictional central excise authority. If the central excise official deputed for verification of the goods for export is satisfied about the identity of the goods, its duty paid character and all other particulars given by the exporter in his application and AR-4, he will endorse such forms and permit the export. 91.1. In these cases, the department has contended that the applicant failed to prove that scrap has been exported unde....
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....nment finds that in para 11 & 12 of the said order dated 27.12.12, the appellate authority has observed as under: "During the course &personal hearing, the representative of the respondents argued that the officers from the Range office have been attending the export to ensure that the duty paid purchased goods are exported. The officers have been certifying the same on the reverse side of the ARE-1. It has also been submitted by him that even the Asst Commissioner, had visited their premises along with officers, took photos of the big piece of scrap and later got permission to export. I have perused the subject ARE- 1. Since the officers concerned have put their dated signature, but no endorsement as to what has been verified is not written in the said ARE Is, it is relevant to take the concerned officers submissions to verity the veracity of the respondents as to what they have confirmed by putting their signatures Hence, the concerned Superintendent and Inspector were called for on 20.12.2012. The officers vide letter dt20.12.2012 have given their version of the export procedure attended by them The relevant portion of th....
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....ving the goods for export. Under such circumstances, Government finds that, though no such verification was conducted by appellate authorities in impugned orders-in-appeal, given the facts of impugned cases being identical and given other facts of these cases, it cannot be concluded that impugned goods at the time of removal for export, were not examined by the central excise officers, as the proof of evidences weigh more in favour of the applicant. 11. Government finds that there are sufficient evidences on record in favour of applicant's contention that their goods were examined before removal for exports. Government now proceeds to examine a situation assuming that impugned goods were not examined by the jurisdictional central excise officer. Government finds that in an identical situation, GOI in Revision. Order No.198/2011-Cx dated 24.2.2011 in case of Sanket Food Products Pvt. Ltd., Jalna, has observed as under: "9. Government also observes that M/s Sanket Food Products Pvt. Ltd., Jalna applied to the Assistant Commissioner, Nanded Division regarding NOC for examination, and stuffing of excisable cargo s....
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....e Jalra addressed to the Assistant Commissioner, Central Excises Handed certifying the' duty payment against the relevant ARE-Is 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 A9/25Addl. MIDC JaIna and the foods have been manufactured by Nl/s Sanket Food Products Pvt. Ltd., Gut Na. 186, Dawn/awadi, Tq. Badnapur, District 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 copy of the ARE-1 endorsed by the concerned Range Superintendent can be condoned. 12. Government observes that Department has taken stand that no rebate is admissible under Rule 14 of Pan Masala Packing Machines (Capacity, Determination and Collection of Duty) Rules, 2008 read with Notification No. 4....
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....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 is the substantfa/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 73 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 authority also examine the goods for Custom purposes such as verifying for certain export incentives such as drawback; CEEC, CEPS or for determining exportability of the goods. ....
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....ted 2.12, 05 passed by the Commissioner of Central Excise (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- CX dated 30.01.1997. 11.1 In above cases, Government conclusively held that the failure to comply with requirement of examination by jurisdictional central excise officer in terms of Board's circular No.294/10/97-Cx dated 30.1.1997 may be condoned if the exported goods could be co-related with the goods cleared from the factory of manufacture or warehouse. In order to examine the issue of co-relatibility, Government has made sample analysis of the exports covered vide some of the shipping bills which is as under: A) R.A. No.195/211/13-RA-CX (i) Government finds that in shipping bill NO.7190500 dated 19.1.2012, there is cross reference at ARE-1 No.07 dated 18.1.12 an....
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....ed in respective ARE-1s and other export documents including shipping bill and export invoices. Since, exported products i.e. the scraps of propeller are less in quantity and each quantity is very high in weight ranging from 500 kgs-5000 kgs, such tallying of marking cannot be brushed aside. As such there are sufficient corroboratory evidences that goods covered vide impugned excise documents have actually been exported vide impugned export documents. Further, endorsements of customs officers at the port of export on part 'B' of said ARE- 1s also conclusive support the same observation. C) R.A.No.195/924/13-RA-Cx (iii) Government finds that in shipping bill No.8083985 dated 19.3.2012, there is cross reference at ARE-1s No.16 & 17 both dated 19.3.12 and vice-versa. The above mentioned ARE-1 find mention of relevant duty paying invoice No.815 dated 31.1.12 and 955 dated 23.2.12 issued by M/s Shree Saibaba Ispat (I) Pvt. Ltd., Bhavnagar and M/s Arya Ship Breaking corporation, Mumbai respectively. Further, description, weight and quantities exactly tally with regard to description mentioned in respective ARE-1s and other export documents including shipping bill and export invoice....