TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 719
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....ppeals) who rejected the appeal and upheld impugned Order In Original. 4. Now, being aggrieved with the Order in Appeal, the applicant has filed this revision application before Central Government under Section 35 EE of Central Excise Act, 1944 mainly on the following grounds:- 4.1 That the consignments have been exported through two different ports. In respect of rebate claim mentioned at Sr. No 1 of the Order In Original, the goods are exported through CFS Mulund and JNPT Nhava Sheva. *In respect of rebate claim mentioned at Sr. No. 2 to 4 of Order In Original the goods are exported through CFS Mulund and Air cargo complex, Sahar. The department of maritime Commissioner Mumbai I, Mumbai III & Raigad All respective sanctioning -authorities-sanction rebate claims only for exported through their jurisdictional port. Therefore we have submitted part rebate claim along with Original documents i.e. ARE-1 and Excise invoice with concern office as per the port of shipment viz. Air Cargo Complex, Sahar and JNPT. And for the quantity exported through CFS Mulund we have submitted rebate claim on photocopies ARE-1 (Original, Duplicate & triplicate) and Excise Invoice duly attested by super....
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.... take lenient view and give us relief with direction how to process such rebate claim. 4.5 That in this matter we would like to rely on below mentioned case laws: In Re; Kamud Drugs Pvt Ltd as reported in 2010 (262) E.LT. 1177 (Comm. App]). In Re.Garg Tex-O-Fab Pvt. Ltd. as reported in 2011 (271) E,L.T. 449 (G.O,I.) In all the above judgments, it was held that the substantial benefit of rebate cannot be deniédforaean3 submission of Original documents. In both the above cases the claimant have not submitted ARE-I documents with rebate sanctioning authority but they are granted rebate on the ground that the documents submitted along with rebate claim like shipping bill, Airway bill etc. proved the export of same goods. Also there is no dispute relating to payment of excise duty, 4.6 That as discussed above, when the goods are exported through two ports we are in practice to submit rebate claim at two authorities from whose jurisdictional port the goods have been exported. Also we submit original documents like ARE-I & Central Excise invoice with the authority whose name we have mentioned on ARE-I. We submit photocopies of ARE-I & C: Ex. Invoice duly attested by Superint....
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....on refund on the verification of the original documents. It was held by the hon'ble Tribunal in the case of M/s Mittal Alloys (2009(244) ELT 237 (Tri- Delhi) that interpretation of statues- rules and notifications - mandatory nature of conditions - conditions relating to procedure construed as non-mandatory in most cases but it is not an universal rule. Interpretation depend upon nature of conditions and purpose intended to be attained by enforcing by such conditions - condition essentially to enable authorities to check clandestine production and removal of goods, cannot be considered non-mandatory but to construed as mandatory. Hon'ble Supreme Court in the case of Indian Oil Corporation ltd. (2012(276) ELT 146 (SC) observes that all the conditions and procedures laid down in the notification shall be observed in order to avail the notification. Hence, the applicants are entitled for rebate on the ground ". 9. Government first proceeds to examine the statutory position with regard to the documents required for sanction of a rebate claim. 9.1 Rule 18 provides that Central Government may by notification grant rebate of duty on goods exported subject to conditions and limitat....
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....case of non-fulfilment of conditions and/or non-compliance of procedure prescribed therein as held by the apex court in the case of Government of India Vs. Indian tobacco Association 2005 (187) ELT (162) (SC); Union of India Vs. Dharmendra Textile Processors (231) ELT 3 (SC). Also it is settled that a notification is to be treated as part of the statute and it should be read along with the Act as held by the Collector of Central Excise Vs. Parle Exports (P) Ltd. 1988(38) ELT 741 (SC) and Orient Weaving Mills Pvt. Ltd. Vs. Union of India 1978 (2) ELT J 311 (SC) (Constitution bench). 11. Further the same issue has been decided by Hon'ble Supreme Court in the case of J. Vashoda Vs. K. Shobha reported as 2007 (212) ELT 458 (SC). In relevant para (9) and (10) of the said decision, the apex court has discussed the Section 63.64 of the Evidence Act 1872 and held that photocopies cannot be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received since the documents in question were admittedly photocopies, there was no possibility of comparing with originals. It is also nowhere on the record that the original document of which the Photostat ....