TaxTMI 
TaxTMI 
2013 (6) TMI 814
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....ication No. 17481/2012 3. That the petitioner-Company engaged in manufacturing of excisable goods i.e. lubricant oil exported the same on payment of duty. That the said goods were exported upon filing 4 ARE­1s. According to the petitioners the said goods were exported directly from their factory. According to the petitioners the original as well as duplicate copies of ARE­1s were lost/stolen for which an FIR came to be lodged with Nahva Sheva Police Station, Thane. That the petitioners submitted an application before the appropriate Authority claiming rebate of duty of Rs. 3,63,089/­ under the provisions of Rule 18 of the Rules on 30-12-2009. That along with the application for rebate of duty, the petitioners submitted the triplicate copy of 4 ARE­1s and other documents such as Mate receipts, bills of lading and shipping bills in support of their claim that as such the goods were exported from their factory on payment of duty. That on the petitioners' rebate claim, the Deputy Commissioner of Central Excise and Customs Division-III - Respondent No. 3 issued a show cause notice on 13-1-2010 raising objection that the claim has been submitted after the expiry o....
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....xporters and quashed and set aside the OIO and directed their rebate claims shall be sanctioned in respect of those ARE­1s where the goods were examined and sealed by Central Excise Officers in containers and same container number and customs seal number are mentioned in corresponding shipping bill, Mate Receipt and Bill of lading. 3.3 Feeling aggrieved and dissatisfied with the order passed by the Commissioner (Appeals) dated 22-7-2010 in directing to sanction the rebate claims of the petitioners with respect to ARE­1s as mentioned in Para 5 of the order-in-appeal, the Revenue preferred Revision Application before the Revisional Authority - Joint Secretary (Revision Application) and by impugned order the Revisional Authority has allowed the said revision application quashing and setting aside the order dated 22-7-2010 passed by the Commissioner (Appeals) and rejected the rebate claim of the petitioners solely on the ground that as the petitioner-exporter has not produced the original and duplicate copies of ARE­1s, which is required to be produced along with the rebate claim as per Paras 8.3 and 8.4 of CBEC's Excise Manual of Supplementary Instructions, which i....
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....h Gupta, learned advocate appearing for Shri Paresh Dave, learned advocate has appeared on behalf of the respective petitioners and Shri R.J. Oza, learned counsel has appeared on behalf of the Department in Special Civil Application No. 1265/2013 and Shri Gaurang Bhatt, learned Central Government Standing Counsel has appeared on behalf of the Department in Special Civil Application No. 17481/2012. 4.1 Shri Gupta, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that the Revisional Authority has materially erred in quashing and setting aside the orders passed by the Commissioner (Appeals) and rejecting the rebate claim of the petitioners solely on the ground that the petitioners-exporters have not produced the original and duplicate copies of ARE­1s along with the rebate claim. 4.2 It is submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that as such on appreciation of the other documents on record the Commissioner (Appeals) had specifically given the finding that the actual export and the payment of duty has been evident and when thereafter, the Commissioner (Appeals) passed an order sancti....
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....d on payment of duty from the factory and/or warehouse, despite non­production of the original and duplicate copies of ARE­1s, the exporter shall be entitled to rebate of duty if all other conditions as mentioned in clause (2) of the notifications under Central Excise Rule 18 are complied with. 4.4 It is further submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that for claiming/getting the rebate of duty, production of original and duplicate copies of ARE­1s is not condition precedent. It is submitted that as such production of original and duplicate copies of ARE­1s is a procedural one along with other corresponding supporting documents so as to satisfy the authority to consider the rebate claim of the exporter whether in fact excisable goods have been exported after payment of duty directly from the factory or warehouse or not as claimed by the exporter. It is submitted that as such the conditions and limitations for rebate of duty are mentioned in Clause 2 of the notifications under Central Excise Rule 18, in which no such condition of production of the original and duplicate copies of ARE­1s is mentioned. 4.5 I....
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....at by the Commissioner (Appeals) has not been upset by the Revisional Authority. It is submitted that as such there is no finding by the Revisional Authority in the impugned order that neither there is any export of excisable goods on payment of duty, from the factory nor even the export on payment of duty under the concerned ARE­1s are even doubted. It is submitted that the Revisional Authority has denied the rebate claims solely on the ground that along with the rebate claim, the exporter has not submitted the original and duplicate copies of ARE­1s, which cannot be sustained even on facts of law, more particularly, the finding given by the Commissioner (Appeals) with respect to actual export on payment of duty in presence of the concerned officers of the Department, from the factory. Making above submissions and relying upon the aforesaid decisions of the Bombay High Court, it is requested to allow the present Special Civil Applications. 5. Both these petitions are opposed by Shri R.J. Oza, learned counsel and Shri Gaurang Bhatt, learned Central Government Standing Counsel appearing on behalf of the Department. It is submitted by learned counsel appearing on b....
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.... mandatory in nature, which is required to be submitted along with the rebate claim as per the statutory requirement of procedure and therefore, in absence of submission of the original and duplicate copies of ARE­1s, the exporter shall not be entitled to the rebate claim and therefore, the Revisional Authority has rightly rejected the rebate claim of the respective petitioners. It is submitted as rightly observed by the Revisional Authority, ARE­1 is basic essential document for export of duty [paid goods] under the rebate claim. It is submitted that the custom certification on the said copy of ARE­1s as such proves the export of goods and therefore, in absence of the said original and duplicate copies of ARE­1s; the rebate sanctioning Authority has no chance to compare those documents with triplicate copy of ARE­1s and therefore, he cannot satisfy himself of the correctness of the rebate claim. Therefore, it is submitted that submission of original and duplicate copies of ARE­1s duly endorsed establishes the export of duty paid goods and therefore, essential requirement cannot be done away with. 5.2 It is further submitted by learned counsel appear....
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....e 18 for rebate of duty on export of goods to all the countries other than Nepal and Bhutan. The said notification also provides for conditions and limitations on fulfillment of which they shall be granted rebate of whole of the duty paid on excisable goods falling under the Ist Schedule to the Central Excise Tariff Act, 1985. That the conditions and limitations provided in Clause (2) of the said notification reads as under : (2) Conditions and limitations :­ (a) that the excisable goods shall be exported after payment of duty, directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order; (b) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow; (c) that the excisable goods supplied as ship's stores for consumption on board a vessel bound for any foreign port are in such quantities as the Commissioner of Customs a....
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....e to be followed by exporter as well as the Department while considering the rebate claim under Rule 18 of the Rules. As per the procedure prescribed in the said notification and as per Paras 8.2, 8.3 and 8.4 of Part I of Chapter 8 of CBEC's Excise Manual of Supplementary Instructions, more particularly, as per Para 8.2, it shall be essential for the exporter to indicate on ARE­1 at the time of removal of export goods the office and its complete address with which they intend to file the claim of rebate and as per Para 8.3, the exporter is required to submit following documents for filing the claim of rebate. (i) A request on the letterhead of the exporter containing claim of rebate, ARE­1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each ARE­1 and its calculations, (ii) Original copy of the ARE­1, (iii) Invoice issued under Rule 11, (iv) Self attested copy of shipping bill, and (v) Self attested copy of Bill of lading, (vi) Disclaimer Certificate [in case where claimant is other than ....
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....observed and held as under : "4.2 The mandatory requirements under rule 18 of Central Excise Rules, 2002 is that the duty paid on export goods shall be refunded and the requirements under section 11B of the Central Excise Act, 1944, shall be fulfilled. Therefore, it has to be examined as to whether these mandatory requirements that duty on export goods was paid and duty paid goods were actually exported, have been fulfilled or not. I have gone through the documents produced by the appellant viz. ARE­1s, Mate Receipts, shipping bills and bills of lading. It is evident from ARE­1 dated 27-4-2009 that the goods were stuffed in the factory by Central Excise Officers in the container No. GLDU 5338898 by customs seal No. 002036. The same container No. and customs seal No. are mentioned in corresponding Mate Receipt, Bill of lading and shipping bill. It is thus evident that the goods against same ARE­1 were exported and hence substantial condition of payment of duty and export of duty paid goods are satisfied. Therefore, the rebate claim cannot be rejected on the ground that procedural requirements as per par 8.3 and 8.4 of CBEC's Excise Manual of Supplementary Instruc....
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....rder passed by the Revisional Authority that while rejecting the rebate claim of the petitioners on non-submission of the original and duplicate copies of ARE­1s, the Revisional Authority has observed that what has weighed with the Revisional Authority is that production of original/duplicate copy of ARE­1 is mandatory and of compulsory nature which is required as per the procedure required to be followed statutorily and that original/duplicate copies of ARE­1s are very important and vital documents so as to enable the Authority to satisfy the claim of the exporter and to compare the same along with the other documents. However, it is required to be noted that as per the requirement of law, submission/production of original and duplicate copies of ARE­1 along with the rebate claim is not the only requirement. As observed herein above, along with the rebate claim, an exporter claiming rebate of duty is required to produce number of other documents such as shipping bill, bills of lading, mate receipt etc. If the intention was to produce and consider the original and duplicate of ARE­1, only in that case, there is no requirement of production of other documents. Un....
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....ndatory. However, while holding so, it is observed that even if non-submission of original and duplicate ARE­1s, the export is required to be established and proved with all conditions and limitations for claiming rebate of duty under Rule 8 more particularly mentioned in Clause (2) of the notification issued under Rule 18 are satisfied even from other supporting documents and if still and on considering other documents the actual export of excisable goods on payment of duty directly from the factory and/or warehouse is not established and proved, in that case, the Authority would be justified in rejecting the rebate claim. However, merely on the ground of non-submission or original and duplicate ARE­1s on that ground alone the rebate claim of an exporter cannot be rejected. However, even for claiming rebate of duty, the exporter is required to satisfy from other documents produced that all the conditions and limitations mentioned in Clause (2) of the notification issue under Rule 18 are satisfied and in fact the excisable goods have been exported on payment of duty from its factory or warehouse and other limitations and conditions are satisfied. In the present case, as sta....
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....where the export of the goods is prohibited under any law for the time being in force. The procedure governing the grant of rebate of central excise duty is specified in the same notification dated 6 September, 2004 separately. Broadly speaking the procedure envisages that the exporter has to present four copies of an application in form ARE­1 to the Superintendent of Central Excise. The Superintendent has to verify the identify of the goods and the particulars of the duty paid and after sealing the packet or container, he is required to return the original and duplicate copies of the application to the exporter. The triplicate copy is to be sent to the officer with whom a rebate claim is to be filed either by post or by handing it over to the exporter in a tamper proof sealed cover. After the goods arrive at the place of export, they are presented together with the original and duplicate copies of the application to the Commissioner of Customs. The Commissioner of Customs after examining the consignment with the particulars cited in the application is to allow the export if he finds that the particulars are correct and to certify on the copies of the application that the goods....