TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 632
X X X X Extracts X X X X
X X X X Extracts X X X X
....-CE(NT) dated 6.9.2004, submission of original, duplicate, triplicate copies of ARE-1 along with the rebate claims is a mandatory requirement in the absence of original duplicate copies of ARE-1 duly endorsed by the Customs authorities in respect of the above mentioned ARE-1, it was not possible to compare the same with the triplicate copy of the said ARE-1, which was also not submitted by the applicant in spite of letters dated 7.4.11 and 29.4.11, the applicant failed to submit the required documents. Accordingly, a show cause notice was issued to the applicant. However, applicant neither appeared for the personal hearing nor submitted any written reply to the show cause notice. In view of the above, the original authority has rejected the rebate claim, for the reason of his submission of copies of original/duplicate ARE-1. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35 EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 Commissioner (Appeals) erred....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fication No.19/2004-CE(NT). It can be seen that the applicants had made all the required documents needs to be made while exporting the goods. Issue only relates to original and duplicate copy of ARE-1 which was lost. However applicants had submitted photo copy of ARE-1 which was duly certified by customs officer and which proves that goods are exported. Even para 8.3 of Chapter 8 Part-I of CBEC Manual prescribes specified documents and applicants had submitted more than the documents required by which it can be proved that goods are exported. The applicants submit that only documents namely original and duplicate copies of ARE-1 which was not submitted by them while submitting claim since they are misplaced. However, applicants had submitted a photo copy of ARE-1 which was certified by customs officers at docks. It is therefore submitted that the dispute is not on exports made or not but it is limited only on one document, which was not submitted by the applicants in original along with rebate claim however he had submitted photocopy. The rebate claim cannot be rejected only on some procedural lapse that they had not submitted the copies of ARE-Is. The Commissioner (Appeals) erred....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rted were of a duty paid character. 12. The procedure which has been laid down in the notification dated 6 September 2004 and in CBEC's Manual of Supplementary Instructions of 2005 is to facilitate the processing of an application for rebate and to enable the authority to be duly satisfied that the two fold requirement of the goods having been exported and of the goods bearing a duty paid character is fulfilled. The procedure cannot be raised to the level of a mandatory requirement. Rule 18 itself makes a distinction between conditions and limitations on the one hand subject to which a rebate can be granted and the procedure governing the grant of a rebate on the other hand. While the conditions and limitations for the grant of rebate are mandatory, matters of procedure are directory. 13. A distinction between those regulatory provisions which are of a substantive character and those which are merely procedural or technical has been made in a judgment of the Supreme Court in Mangalore Chemicals & Fertilizers Ltd. v. Depu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne on the vessel and the vessel sailed on 18 April 2008 whereas the Let Export Order was passed by the customs authorities on 19 April 2008. The Petitioner has stated that in view of this position the customs authorities withheld the endorsement of the ARE-1 forms and the issuance of the export promotion copy of the shipping bill paragraphs 8(g) and 8(h) of the petition. We find merit in the contention of counsel appearing on behalf of the Revenue that in these circumstances, the rejection of the rebate claim dated 8 April 2009 by the adjudicating authority and which was confirmed in appeal and in revision cannot be faulted. Admittedly even accordingly to the Petitioner the goods came to be exported and the vessel had sailed on 18 April 2008 even before a Let Export order was passed by the customs authorities. The primary requirement of the identity of the goods exported was therefore, in our view, not fulfilled. In such a case, it cannot be said that a fundamental requirement regarding the export of the goods and of the duty paid character of the goods was satisfied. 16. However, it is evident from the....