TaxTMI 
TaxTMI 
2015 (3) TMI 949
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....8 of Central Excise Rules, 2002 in respect of Central Excise duty paid on goods used in manufacture of goods exported outside India. The applicants filed three rebate claims dated 5-8-2011/8-8-2011 along with the original/duplicate copies of the ARE-2s, concerned shipping bills and bill of ladings. The adjudicating authority in all three cases vide impugned orders all dated 17-12-2011, partially sanctioned the rebate amount and rejected the balance amount on the ground that the original copies of ARE-2 No. 205, dated 12-6-2011, 215, dated 18-6-2011 & 26, dated 7-4-2011 respectively were not filed but only photocopies of the same were filed. 3. Being aggrieved by the said Orders-in-Original, applicant filed appeal before Commissioner (Appeals) who rejected the appeal. 4. Being aggrieved by the impugned Orders-in-Appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 That the Commissioner (Appeals) has completely ignored the standing instructions contained in Chapter 7 & 8 of C.B.E. & C.'s Excise Manual regarding rebate claim of input state duty under R....
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....ural condition of technical nature and a substantive condition. The Apex Court held that non-observance of procedural condition is condonable while that of substantive condition is not. 4.5 That in view of the above grounds, they requested to (a) set aside the impugned order-in-appeal No. 78 to 80-CE/MRT-II/2012, dated 30-3-2012 insofar as it relates to rejection of part rebate claim ; (b) hold that the applicants are legally entitled to rebate claim on input materials that were actually used in the manufacture of finished product exported out of India. 5. Shri S.S. Arora, Advoate of the applicants filed written submissions vide letter dated 2-8-2013 and made following submissions :- 5.1 That during the course of rebate proceedings the adjudicating authority advised the applicant to submit the original copy of the ARE-2 in all the three revision applications. In spite of the fact that the applicant had already submitted the original and the duplicate copies of the ARE-2 duly signed by the Customs Authorities along with the rebate claim papers and on 21-11-2011 gave the reply that they have already submitted the ori....
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....f ARE-2 No. 205 dated 12-6-2011, 215, dated 18-6-2011 and 26, dated 7-4-2011 only the photocopies of said ARE-2 were filed. Commissioner (Appeals) upheld the said order and now applicant has filed these revision applications against impugned Orders-in-Appeal on the grounds stated above. 8. Government notes that applicant had been claiming right from beginning that said original and duplicate ARE-2 forms duly endorsed by Customs were submitted along with the rebate claims. The forwarding letter clearly states that they have submitted original and duplicate copies of ARE-2 form. The rebate claims are found otherwise in order as the use of duty paid inputs in the manufacture of goods exported is not disputed by the department. The proof of export is available in the form of Customs endorsements on the shipping bills and duplicate ARE-2 in original forms certifying export of said goods. The photocopies of the original ARE-1 duly endorsed by Customs are also submitted. In these circumstances the pleadings of the applicant that they are entitled for said rebate claims merit acceptance. 9. The applicant has relied upon judgment dated 24-4-2013 of Hon'ble Bombay High Cour....
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....hat a provision is contained in a statutory Instruction "does not matter one way or the other". The Supreme Court held that non-compliance of a condition which is substantive and fundamental to the policy underlying the grant of an exemption would result in an invalidation of the claim. On the other hand, other requirements may merely belong to the area of procedure and it would be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes which they were intended to serve at paragraph 11. The Supreme Court held as follows : "The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some other may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve." 14. The particulars which are contained in Form ARE-1 relate to the manufacture of the goods, the number and description of the packages, the weight, marks and quantity of the goods and the description of the goods. Sim....
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....easons that we have indicated earlier, we hold that the mere non-production of the ARE-t form would not ipso facto result in the Invalidation of the rebate claim. In such a case, It is open to the exporter to demonstrate by the production of cogent evidence to the satisfaction of the rebate sanctioning authority that the requirements of Rule 18 of the Central Excise Rules, 2002 read together with the notification dated 6 September, 2004 have been fulfilled. As we have noted, the primary requirements which have to be established bay the exporter are that the claim for rebate relates to goods which were exported and that the goods which were exported were of a duty paid character. We may also note at this stage that the attention of the Court has been drawn to an order dated 23 December, 2010 passed by the revisional authority in the case of the Petitioner itself by which the non-production of the ARE-1 form was not regarded as Invalidating the rebate claim and the proceedings were remitted back to the adjudicating authority to decide the case afresh after allowing to the Petitioner an opportunity to produce documents to prove the export of duty paid goods in accordance with th....