TaxTMI 
TaxTMI 
2015 (1) TMI 942
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....mpugned Order-in-Appeal, this revision application under section 35 EE of Central, the applicant has filed Central Government on the following grounds:- 4.1 Notification No. 19/2004-(NT) dated 06.02.2004 as amended in exercise of power vested under Rule 18 has specified condition, limitation and procedure for the purpose of allowing rebate claim of duty on export goods. The requirement of original/duplicate copy of ARE-1 signed by Custom authority is listed under the head Presentation of claim for the rebate to Central Excise which falls under Procedural requirement and not under "conditions". Therefore these procedural requirements cannot have the same status as condition, the absence of which only would be a ground for denying the rebate claim. It is accepted principle in legal jurisdiction that infraction of procedural requirements are in the nature of technical breaches which cannot come in the way of allowing the Substantial benefit that is otherwise available. As such there no lapse in following the condition under Notification No. 19/2004-(NT) dated 06.02.2004, as alleged. 4.2 Commissioner(Appeals) failed to appreciate that the ARE-1 No. 92 dated 13.05.2009 and Excise ....
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....original copy of ARE-1 with the triplicate copy of the ARE-1 which in this case was available and had been enclosed as proof of export, but these are not the only documents that will enable him to do the required verification. The provisions of Notification No. 19/2004-CE(NT) dated 06.09.2004 as well as Para 8.3 of Chapter 8 of Part I of the Basic Excise manual also require him to examine other export documents, namely; invoice issued under Rule 11, self attested copy of shipping bill self attested copy of Bill of Lading in order to satisfy himself about the factum of export of the goods and their duty paid character. Without apparently appreciating the fact that the other export documents had been submitted by the applicants and also without appreciating the fact that the original Triplicate copy of ARE1 had been submitted along with the refund claim which showed the certification of the Central Excise officers about the stuffing of goods under their supervision and sealing thereof, the Commissioner has upheld the Order in Original passed by Assistant Commissioner under which the claims were originally rejected on holding that the filing of the original and duplicate copy of ARE-1....
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....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 /imitations 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, Deputy Commissioner 1991 (55) E, L. T 437 (S C.) (2092-TIOL- 234=SC-(CJ). The Supreme Court held that the mere fact that a provision is contained in a statutory Instructi....
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.... 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 sailedon18 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 regard the export of the goods and of the duty paid character of the goods was satisfied. 16. However, it is evident from the record that the second claim dated 20 March 2009 in the amount of Rs. 2, 45 lacs which forms the subject matter of the first writ petition and the three claims data 20 March 2009 in the total amount of Rs. 42.97 lacs which form the sub....