TaxTMI 
TaxTMI 
2018 (12) TMI 166
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....ules of 2002') read with notification dated 6.9.04 ('relevant notification' in short) claiming refund/rebate of duty paid on goods exported. The application was rejected by the first respondent which was affirmed by the appellate authority and thereafter, affirmed by the revisional authority also giving rise to this petition. Before the learned Single Judge, writ petitioner sought to assail the order on the ground that the scheme of rebate being a beneficial exemption to promote exports, require liberal interpretation and mere non submission of some of the required documents, in the present case, ARE-1 (application) for removal of cause for export would not Ipsofacto result in rejection of claim. Relying upon the decision of the Supreme Court in the case of Commissioner of Customs (Preventive) Mumbai Vs. M. Ambalal & Company reported in 2010 (13) SCALE 266, it was submitted that the requirement of submission of ARE-1 is merely procedural and not substantive legal requirement therefore if some reason, ARE-1 was not submitted, the authority was required to evaluate other collateral documentary evidence while examining the claim of rebate. 3. The stand taken by the coun....
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.... having been duty paid on the actual export. According to him, this is also aimed at making enquiry effective and summary and at the same time, based on authentic documents, thereby ensuring efficiency of the administrative process and at the same time, ensuring that fake and forged claim of rebate, based on unverified statements and doubtful documents are not allowed to take its course to pierce into the administrative check against forged claims. He would submit that the ratio laid down by the Supreme Court in the case of M. Ambalal, relied upon by the learned single judge holds the field. 7. In the present case, the petitioner, as is evident from the order (Annexure P-4) passed by the Assistant Commissioner, submitted following documents : "(3) Self attested Xerox copy of Invoices No. TST/2007- 2008/001 and TST/2007-2008/002 both dated 02.01.2008. TST/2007-2008/003, TST/2007-2008/004, TST/2007- 2008/005 dated 03.01.2008, TST/2007- 2008/006,TST/2007-2008/007, TST/2007-2008/008 dated 15.01.2008, TST/2007-2008/008 dated 16.01.2008, TST/2007-2008/009 dated 21.01.2008 and TST/2007- 2008/010 dated 07.03.08. (4) Self attested Xerox copy of Shipping Bill No. 000091 ....
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.... directs that there shall be granted rebate of the whole of the duty paid on all excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), exported to any country other than Nepal and Bhutan, subject to the conditions, limitations and procedures specified in this notifications." As per Notification No.19/2004-CE(NT), dated 6.9.2004 as amended, admissible quantified rebate of CENVAT and Education Cess paid on th goods exported is available to the claimant, subject to fulfillment of the conditions and procedures. 3. As per procedure prescribed in para 8.3 of p;art-1 of Chapter 8 of said Supplementary Instructions, the following documents are required for filing of Rebate claims. (i) A request on th letterhead of the exporter containing claim of rebate, ARE-1 Nos. and dates, corresponding Invoice Nos. and dates, amount of rebate on each ARE-1 sand its calculation, (ii) original copy of ARE-1 (iii) invoice issued under Rule 11. (iv) self Attested copy of Shipping Bill and (v) self Attested copy of Bill of Lading (vi) Disclaimer Certification [in case where the claimant is ....
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....tion for grant of rebate, it should also be held to be mandatory. If the Rule itself requires the fulfillment of precondition for grant of rebate, it would amount to doing violence to the plain language of the statute to hold otherwise that fulfillment of requirements would not be a mandatory precondition. 14. Learned counsel for the appellant has placed reliance on the decision of the supreme court in the case of Union of India Vs. Suksha International and Nutan Gems and Others reported in AIR 1989 SC 690 wherein one of the issues was whether certain limitations should be held to be mandatory or not. What impelled their Lordships in the Supreme Court to hold that the provision was directory is as below : "Acceptance of the interpretation suggested by Shri Subba Rao would, in our opinion, unduly restrict the scope of the beneficial provision and, in many instances which would otherwise fall within the beneficial scope of the policy in para 185(4), take away with one hand what the policy gives with the other." It is thus clear that in that case what was found was that the interpretation suggested unduly restrict the scope of these provision and amounted to take awa....
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....ld to be statutory. Such a condition must, says counsel, be equated with the requirement of production of the declaration form in Kedarnath's case and thus understood the same consequences should ensure for the on-compliance. Shri Narasimhamurthy says that there was no way out of this situation and no adjustment was permissible, whatever be the other remedies of the appellant. There is a fallacy in the emphasis of this argument. The consequence which Shri Narasimha Murthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. 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 others 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. " In another decision, in the case of Govt. Of India ....
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....Commissioner of Commercial Taxes and Others, it was held as below : 13. A distinction between those regulatory provisions which are of a substantive character and those which are merely procedural or technical has been made in a judgment of the Supreme Court in Mangalore Chemicals & Fertilizers Ltd. v. Deputy Commissioner 1. The Supreme Court held that the mere fact that 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 2. 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. ....
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....ken in various decisions cited before us. The High Court of Gujarat has also taken similar view as has been taken by High Court of Mumbai regarding the nature of submission of ARE-1 document for availing rebate on duty paid goods exported. In the case of M. Ambalal, the law relating to the principles applicable in the matter of interpretation of exemption provisions were laid down as below : "10) It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasize that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal Statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A c....
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....paid goods and its export in the form of certification of the excise officer as well as custom officer and in case of export by post, by certification of postmaster. This is intended to put in place an effective machinery of disposal of rebate claims. It is with the object of prompt decision of rebate claims and at the same time, to ensure that fabricated or forged claims are not allowed to percolate to avoid payment of duty. We thus, find that there is considerable force in th submission of learned counsel for the revenue that ordinarily the procedure prescribed for seeking rebate must be followed. We hold that ordinarily the procedure prescribed for seeking rebate must be followed which includes submission of various documents/certificates in prescribed forms including ARE-1 document. 23. It is only in appropriate cases where it is found that for such reasons which are satisfactory in the opinion of the authority due to which the assessee for reasons beyond his control could not submit ARE-1 document that he could be allowed to lead collateral documentary evidence in support of its claim for rebate. However, this procedure would only be an exception to the general rule. If we ....