TaxTMI 
TaxTMI 
2015 (8) TMI 1363
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....facture of Soyabean Meal which was exported in terms of Rule 18 of Central Excise Rules, 2002. 2.3 The above said rebate claim was scrutinized and it was found that applicant had not fulfilled conditions prescribed under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of Central Excise Rules, 2002. Therefore, show cause notice dated 21-12-2010 was issued by the adjudicating authority to the applicant against rebate claim filed by the applicant. 2.4 The adjudicating authority vide impugned Order-in-Original adjudicated the show cause notice and rejected the rebate claim filed by the applicant. 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 35EE of Central. Excise Act, 1944 before Central Government on the following grounds :- 4.1 That the adjudicating authority is wrong in rejecting the rebate claim of the applicant. 4.2 That the adjudicating authority has failed to see that in present case there is only some procedur....
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....Hon'ble High Court relied upon the decision of the Apex Court in case of Mihir Textiles Ltd. v. CC - 1997 (92) E.L.T. 9 (S.C.) and held thus :- "the law is well-settled that when an assessee wants to take benefit of any rebate he must satisfy all the conditions which are necessary for availing the rebate." 4.4 In view of above applicant submitted that in present case the rebate claim is disallowed only on the ground that procedure of ARE-2 is not followed. Further part claim of Rs. 17,901/- is disallowed on limitation ground. 4.5 As regards not following the ARE-2 procedural applicant submitted that they have exported the goods partly through merchant exporter/Export House and partly exported directly from their factory. Since the final products of the applicant was exempted from central excise duty being tariff rate is NIL, the applicant was under impression that there is no need to issue ARE-2 Form. Applicant submitted that since their product is not excisable, they have not followed any ARE-2 procedure. The applicant was under bona fide belief that the procedure of export under Rule 18/19 is required to be followed only if product is excisable. Since the DOC a....
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....Hon'ble Tribunal that, if AR-4 procedure is not followed even. Hence, benefit of export is to be extended if other documents are produced. The present procedure of ARE-2 is equivalent to AR-4 procedure. The applicant also provided other proof of export like 'H' form, photocopy of shipping bills and bill of lading, etc. Hence benefit of export should be allowed. 4.9 That reliance is also placed on the decision of Govt. of India in case of M/s. Murali Agro Products Ltd., Nagpur reported in 2006 (200) E.L.T. 175 (G.O.I.). That in this case the revision application filed by the Commissioner of Customs and Central Excise, Nagpur was rejected and held, that : "On this contention Govt. would observe that there is plethora of judgments of Hon'ble Tribunal, Courts, and Govt. of India wherein it is consistently held that if export of duty paid goods is proved substantial benefit of rebate should not be denied on procedural infractions. In the instant case as discussed above the respondents have procured Central Excise duty paid input directly from manufacturer in terms of Notification No. 41/2001-C.E. (N.T.), dated 26-6-2001, and the said input has been used in manufacture of the ....
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....bill of lading, invoices, bank certificates attached to the refund claim - Shipping bills can be considered as valid documents to prove the export of goods in absence of AR-4/AR-4A - Refund admissible. 4.14 That in following cases it is held by the Government of India that rebate can be granted even declaration of input output ratio is not filed :- • In Re : Commissioner of Central Excise, Bhopal - 2006 (205) E.L.T. 1093 (G.O.I.) • In Re : Commissioner of Cus. & C. Ex., Nagpur - 2006 (200) E.LT. 175 (G.O.I.). 4.15 Even otherwise, the fact remains the same that final product has been exported by the applicant, hence rebate can be allowed after condoning such lapse. In following cases rebate claim has been allowed even compliance of filing of declaration has not been fulfilled :- • Krishna Filaments Ltd. - 2001 (131) E.L.T. 726 (G.O.I.) • Allanasons Ltd. and other - 1999 (81) ECR 337 (GOI) = 1999 (111) E.L.T. 295 (G.O.I.). 4.16 Applicant submits that it is the settled law that rebate benefit cannot be disallowed on the basis of procedural lapses. Once the fact of export is not deniable, the rebate claim canno....
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....bsp; Lupin Laboratories Ltd. v. CCE, Bhopal - 1999 (113) E.L.T. 978 (T) - Jay Engg. Works Ltd. v. CCE, Calcutta-I - 2001 (137) E.L.T. 454 - Benara Bearings Pvt. Ltd. v. CCE, Kanpur-I - 1999 (105) E.L.T. 398 (Tribunal) - Associated Cement Cos. Ltd. v. CCE - 1999 (111) E.L.T. 257 - Lupin Laboratories v. CCE, Indore - 1994 (71) E.L.T. 278 (T) - Nagarjuna Agro Tech. Ltd. v. CCE, Hyderabad - 2001 (137) E.L.T. 1106 (T) - Synthetics & Chemicals Ltd. v. CCE - 1997 (93) E.L.T. 92 (T) - Mangalore Chemicals v. UOI reported in 1991 (55) E.L.T. 437. 4.18 The adjudicating authority in his order also relied the decision of Hon'ble High Court of Himachal Pradesh in case of CCE v. Indian Overseas Corporation - 2009 (234) E.L.T. 405. In this context applicant submit that in the said case the export was made from the branch office of th....
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....rocedure of ARE-2 is not required and in case of export through merchant exporter the sales tax form, i.e., "Form H" issued by the merchant exporter can be accepted as proof of export. That reliance is placed on Board Circular No. 648/39/2002-CX, dated 25-7-2002, F.No. 209/11A/2002-CX.6, wherein it is clarified in Para 2 that in the case of export by exempted units through merchant exporter, the documents prescribed by Sales Tax Department, viz H-Form/ST-XXII Form or any other equivalent Sales Tax form, will be accepted as proof of export. Also relied on following ruling : - Rajindra Forge (P) Ltd. v. CCE, 1999 (111) E.L.T. 744 - Benara Bearings Pvt. Ltd. v. CCE, Kanpur-I - 1999 (105) E.L.T. 398 (Tribunal). 5.3 In view of above clarification of Board Circular and the decision of Hon'ble Tribunal it becomes clear that in case of export of exempted product the Form H can be accepted as proof of export and there is no need to issue form ARE-2/AR-4. That in present case it is the acceptable fact that goods namely DOC manufactured and exported by applicant were the exempted prod....
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....in manufacture of goods for the purpose of export but failed to fulfill the conditions and did not follow the prescribed procedure. They did not comply with the provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 under Rule 18 ibid and failed to file ARE-2 with proper officer and also failed to submit proof of export of goods in question. 9. In reference to the above, Government first proceeds to examine the statutory position and the requirement of Form ARE-2. 9.1 Government notes that export of goods under claim for rebate on inputs used in manufacture of export goods is governed by Rule 18 of Central Excise Rules, 2002 and Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 read with Chapter 7 of C.B.E. & C.'s Central Excise Manual and finds that ARE-2 is the basic and essential document for exports as an application for removal of goods for export under claim for rebate. 9.1.1 As per procedure prescribed in the said notification for sealing of goods at place of dispatch, the reporter shall present the goods along with four copies of application in Form ARE-2 to the Superintendent or Inspector of Central Excise who will verify the identity....
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....ode no., progressive total of clearances, EXIM code, etc.; filling prescribed quarterly statement; submitting proof of export to Range Officer within six months from date of clearance from factory; proof of clearance in case of exports through merchant exporters including Form H in case of goods exported directly from the unit. 9.2 In light of the above stated statutory provision, Government observes that any export clearance, intended to be made for claiming import duty rebate, will be subject to Rule 18 ibid read with Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 in case of registered units and C.B.E. & C.'s Circular No. 648/39/2002, dated 25-7-2002 in case of declarant units. ARE-2 is the principle document under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 that establishes that the applicant has either followed the procedure for sealing of goods and examination of goods at place of dispatch either by Central Excise Officer or by self-sealing. In the absence of the ARE-2 and without following the procedure described above, it cannot be established that goods which were cleared from factory were the ones actually exported or that goods exported cannot be co....
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.... Further, Government in its earlier Orders 774/2011-CX, dated 14-6-2011 in the case of Amira Tanna Industries Pvt. Ltd. [2013 (292) E.L.T. 134 (G.O.I.)] and 871/2011-CX, dated 4-7-2011 in the case of Synergy Technologies [2012 (280) E.L.T. 578 (G.O.I.)] has held that preparation of statutory requirement of ARE-1 cannot be treated as a minor or technical procedural lapse for the purpose of accepting proof of export of goods as such leniencies could lead to possible fraud of claiming an alternately available benefit. The ratio of these orders is squarely applicable to the present case. 9.3.5 Government notes that the applicant relied on the various judgments regarding procedural relaxation on technical grounds. The point which needs to be emphasized is that when the applicant seeks rebate under Notification No. 21/2004-N.T., dated 6-9-2004, which prescribes compliance of certain conditions, the same cannot be ignored. While claiming the rebate under such Notification No. 21/2004-N.T., dated 6-9-2004 the applicant should have ensured strict compliance of the conditions attached to the Notification No. 21/2004-N.T., dated 6-9-2004. Government place reliance on the judgment....
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....er and hence the same is a material requirement and cannot be attributed to the procedural lapse. Under Rule 18 of Central Excise Rules, 2002 there is no provision for condonation of non-compliance with the conditions and procedure laid down in the notification allowing rebate under said rule. 11. Government notes that in support the applicant has cited a number of decisions. However Government finds that the decisions relied upon by them are not applicable as the facts and circumstances of the quoted cases differ from that of the applicant's case. 12. Moreover, the explanation given by the applicant that due to ignorance of law the proper procedure was not followed by them, also does not appear to be genuine and creditworthy. In any case ignorance of law is no excuse not to follow something which is required to be done by the law in a particular manner. This principle has been recognized and followed by the Apex Court in a catena of its judgments. 13. Government, therefore, finds that applicant had not exported the impugned goods on ARE-2 application as per the requirement of the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, although they are regist....