TaxTMI 
TaxTMI 
2014 (3) TMI 1041
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....a) the goods cleared on payment of duty (under protest) and exported was Thermogelic Formula I Chocolate or Thermogelic Formula I Dutch Chocolate. (b) Original copy of Central Excise Invoice No. 37, dated 10-5-2002, issued by M/s. Dominion Chemicals Ltd. was not submitted. (c) Duplicate copy of Central Excise Invoice No. 13, dated 17-4-2000, 17, dated 25-4-2000, 20, dated 2-5-2000 & 42, dated 30-5-2002 issued by M/s. Dominion Pharmaceuticals Ltd. were not submitted. (d) Original copy of Central Excise Invoice No. 52, dated 6-6-2000, 53, dated 13-6-2000 issued by M/s. Dominion Pharmaceuticals Ltd. were not submitted. (e) Assessable value was Rs. 8,34,17,917/-, but F.O.B. value was much lower at Rs. 1,53,54,379/-. (f) Whether the applicants had filed appeal against order of classification of the product. (g) Disclaimer certificate from the manufacturer of the goods exported not submitted. (h) Explanation for disclaimer does not appear on t....
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....ndent of Central Excise, Madiwala Range II, Bangalore-I Commissionerate & Superintendent of Central Excise, Jigani Sadan, Koramanala, Bangalore to verify duty payment particulars. 2.4 The Range Superintendent, Jigani, Bangalore, vide his letter dated 13-8-2002, informed that M/s. Dominion Pharmaceuticals were not working and sealed and that records were not available. However, from Range record only RT-12 returns for the months of April to June, 2000 and PLA account could be traced. Further, invoice-wise statement for the month of April to June, 2000 was found in the respective RT-12 and the same could be made available. The Range Superintendent, Jigani, Bangalore, further informed that no invoices were available to verify the same with PLA and that since copies of invoice were not available verification could not be done at their end and accordingly triplicate ARE-1 was not certified by them. 2.5 The Range Superintendent, Madiwala Range-II, Bangalore-I, vide letter dated 12-8-2002 confirmed the correctness of the triplicate and quadruplicate copies of ARE-1 No. 1/2002, dated 22-1-2002 and corresponding invoices No. 29/8-5-2000, 32/9-5-2000, 34/10-5-2000, 37/12-5-20....
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....-9-2005, was therefore issued to the applicant for the aforesaid discrepancies. 2.8 The Assistant Commissioner (Rebate), Central Excise, Mumbai-I, vide Order-in-Original No. 110/R/2006, dated 22-2-2006, rejected the rebate claim of Rs. 1,33,46,866/-. The Assistant Commissioner (Rebate), vide Order-in- Original dated 22-2-2006, has inter alia held that the goods exported by the applicants were Thermogetic Formula I Chocolate and Thermogetic Formula I Dutch Chocolates. The date of clearance from the factory and the date of export of the said goods indicate that the said goods have been exported nearly after 21 months from the date of clearance from the factory. The actual date of manufacture was nowhere available and even applicants have shown inability to produce the same. This creates suspicion whether the goods exported were within expiry period or otherwise and hence they did not have the local market. In his Order dated 22-2-2006, the Assistant Commissioner (Rebate) further held that from the case records, the value of goods exported as per Central Excise invoices was Rs. 8,34,17,917/- and the value shown on the goods exported was Rs. 1,53,54,379/- which clearly indicate....
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.... triplicate copy of the ARE-1, dated 22-1-2002, and informed vide letter O.C. No. 467/02, dated 22-8-2002, that the duty payment particulars in respect of Invoice Nos. 13, 20, 29 & 42 could not be verified. (iv) that the goods manufactured by M/s Li-Taka Pharma, Pune, have also been exported under the cover of ARE-1 No. 1/2002, dated 22-1-2002, and the Range Superintendent, Talegoan Range has counter-signed the ARE-1. Therefore, the question arose as to how the goods manufactured by M/s. Li-Taka, Pune, were included and exported vide subject ARE-1, dated 22-1-2002. (v) that on perusal of the description of the goods vis-a-vis ARE-1 and packing list, it appeared that the goods were opened and repacked. Also that there was no record of any procedure followed for trans-shipment of duty paid goods from the original destination from 115, Koramangala Ind. Area, Bangalore to AFC Logistics, Trifed, Plot No. T-3, M.I.D.C. Taloja, for export. (vi) that the Annexure to ARE-1 gives details of only the goods to be exported. The goods appears to be repacked by the merchant exporter and the packages mentioned in the annexu....
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....e description of goods and the corresponding quantities. (d) ARE-I No. 1/2002, dated 22-1-2002 evidencing export of 127386 units (87.66 tons) of goods. (e) Mate Receipt issued by Samrat Shipping Logistics Pvt. Ltd. evidencing delivery of goods on Board Indamex Nhava Sheva 2104. (f) Bill of Lading bearing No. CCXLSAMBBYE10166, dated 26-1-2002 issued by Samrat Shipping & Logistics Pvt. Ltd. evidencing receipt of export goods. (g) FIRC from the ABN AMRO Bank evidencing receipt of USD 321894.74 against Applicant's Export Invoice No. HRBL/HRBL/ 02/01, dated 22-1-2002 and shipping bill No. 520414, dated 24-1-2002. (h) Declaration from the overseas entity i.e. Herbalife International of America Inc. confirming receipt of goods exported vide Invoice No. HRBL/HRBL/02/01, dated 22-1-2002 and Bill of Lading No. CCXLSAMBBYE10166, dated 26-1-2002. (i) Verification Report dated 24-10-2001 issued by Range Superintendent, Taloja, Mumbai certifying the fact that the total quantity of materials as per the....
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....from the manufacturer under Central Excise Invoices was not exported but only part quantity was exported, which can be easily co-related. However, part quantity (i.e. the balance) was cleared by the applicant in the domestic market and rebate has been claimed by the applicant only on the quantity of goods exported. 4.5 Further, the Range Superintendent, Taloja, Mumbai, in his verification report dated 24-10-2004 has clearly held that the goods were clearly identified with their respective invoices and were in original factory packed condition. Therefore, the allegation by the Commissioner (Appeals) that the goods cleared from the manufacturer's premises could have been opened or repacked and hence could not be correlated with the export goods is wholly unsustainable. 4.6 It is humbly submitted that the Range Superintendent, Taloja, Mumbai, in his verification report dated 24-10-2001 while approving that the goods procured by the applicant are in original packed condition, has referred to a stock position statement (duly signed by the Authorised Signatory of applicant). It is the allegation of the Commissioner (Appeals) that the stock position statement submitted by ....
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.... dated 1-8-2001 were not signed, there is a clear mention of the Annexure attached as well as the corresponding amounts in the letter itself which was duly signed and which is not in dispute. Therefore, when the amounts and the quantities mentioned in the letter match with the amounts and quantity as mentioned in the ARE-1 and other export documents, the allegation by the Commissioner (Appeals) that the export goods cannot be correlated with the goods for which extension has been sought is nothing but arbitrary and propounded just to deny the benefit of rebate to the applicant. 4.10 The Commissioner (Appeals) at Paras 31 and 34 of the impugned order has held that Annexure to ARE-1 was not signed by the Superintendent and also does not bear the concerned ARE-1 number. Therefore, the authenticity of the said Annexure cannot be established and hence, the applicant have failed to prove that the goods which were cleared from the manufacturers premises were the same goods which were exported vide ARE-1 No. 01/2002, dated 22-1-2002. 4.11 In this regard it is humbly submitted that the Commissioner (Appeals) while discussing the facts of the case, has himself admitted at Par....
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.... that the observations made by the ld. Commissioner (Appeals) are right and the claim is liable to be rejected it is apparent that claim filed by the applicant is being rejected merely on procedural, grounds such as non-signing of documents or annexures. The Commissioner (Appeals) has erred grossly in not considering the fact that the core aspect or fundamental requirement for rebate is the manufacture of goods, the payment of duty on the same and its subsequent export, which in the present case is beyond any doubt. The Hon'ble Courts in a plethora of judgments have held that rebate is a beneficial piece of legislation with a view to promote exports and therefore the same cannot be denied on mere technical grounds. The applicants rely on the following judgments : • Barot Exports [2006 (203) E.L.T. 321 (G.O.I.)] • Cosmonaut Chemicals v. UOI [2009 (233) E.L.T. 46 (Guj.)], • Mangalore Chemicals and Fertilizers Limited v. Deputy Commissioner of Commercial Taxes and Others [(1992) Supp. 1 SC 21]; • UOI v. Suksha International & Nutan Gems & Anr. [1989 (39) E.L.T. 503 (Supreme Court)]; • Sanket Industries Ltd. [2011 (268....
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....in case of future exports [including the export as shipstores], to avail the aforesaid waiver from the condition of direct exports from the factory/warehouse, the exporters will be required to follow the factory/warehouse, the exporters will be required to follow the procedure prescribed in Circular No. 2/75, dated 22-1-1975 [reiterated in Circular No. 18/92, dated 18-12-1992], which is reiterated below with certain modifications :- 8.1 An exporter, (including a manufacturer-exporter) desiring to export duty paid excisable goods (capable of being clearly identified) which are in original factory packed condition/not processed in any manner after being cleared from the factory stored outside the place of manufacturer should make an application 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....
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.... manufacturer shall handover to the Superintendent promptly under proper receipt, and the Superintendent will carry out necessary verification, and certify the correctness of duty payment on both triplicate & quadruplicate copies of AR-4. He will also endorse on the reverse of manufacturers' invoice "GOODS EXPORTED - AR-4 VERIFIED", (and return it to the manufacturer under proper receipt.) He will forward the triplicate copy to the Maritime Commissioner of the port from where the goods were/are exported. The quadruplicate copy will be forwarded to his Chief Accounts Officer. The Range Superintendent will also maintain a register indicating name of the exporter, Range/Division/Commissionerate indicating name of the exporter' godown, warehouse etc. 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 wi....
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....formed that since the case records are old, the required documents could not be submitted. The appellants vide this office letter F. No. 25/MI/2007, dated 7-4-2011, were also requested to submit the copy of the two letters both dated 1-8-2001, along with the Annexures, under which they had approached the Commissioner, Central Excise, Bangalore-I Commissionerate, seeking extension of the time limit for export of goods from Taloja. The appellants vide their letter 18-5-2011, have submitted the copies of their letters dated 1-8-2001, addressed to Deputy Commissioner, Central Excise, Bangalore-III Division, Bangalore, and Deputy Commissioner, Central Excise, Bangalore-II Division, Bangalore seeking extension of time limit for extension for export of goods. In both the letters the appellants, at Para 2, have mentioned that the products, as mentioned in the Annexure to the letters, were lying in original packed condition as consigned by the manufacturer. The appellants have however, failed to submit the copies of the Annexures to the letters dated 1-8-2001. The appellants vide their letter dated 18-5-2011 have submitted the copy of letter F. No. V.Gen(30) 36/Herbal life/2001, da....
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.... the manufacturers premises were the same which have been exported by subject ARE-1. Even the Annexures submitted by the appellants vide their letter dated 18-5-2011/22-6-2011 cannot be accepted, as the Annexures do not bear signature of the appellants or its authorized signatory. However, it is seen that the jurisdictional Range Superintendent, Range VI, Taloja Division, of the then Mumbai-VII Commissionerate, in his letter dated 24-10-2001, had submitted the verification of the material as per stock statement given by the appellants and in his report he has specifically mentioned that, the Stock Position statement was duly signed by the authorized signatory of the appellants. Therefore, the authenticity of the Annexure to the letter dated 24-10-2001 which has been now submitted by the appellants, vide their letter 22-6-2011, is in doubt and the same cannot be accepted as the same Annexures that were submitted by the appellants before the jurisdictional Range Superintendent at the time of verification of the goods before the same were exported. I find that the adjudicating authority in his findings has clearly observed that the details of the goods exported i.e. Annexure ....