2023 (3) TMI 1171

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....oner claims that the first batch of refund claims related to the period 2012-14. The petitioner had sought refund of Rs.17,37,263 on 20.04.2012; Rs.15,66,920/- on 10.12.2012; Rs.10,04,897 on 17.12.2013; Rs.7,95,226/- on 17.12.2013; Rs.5,71,207/- on 07.01.2014 and Rs.4,00,858/- on 07.01.2014. The petitioner contends that it had filed the aforementioned applications seeking refund of taxes suffered on inputs under the mistaken belief that the same were available under Rule 5 of the Cenvat Credit Rules, 2004 (hereafter the 'CC Rules'). The petitioner claims that it was not entitled to refund under Rule 5 of the CC Rules but was entitled to claim rebate under Rule 18 of the Central Excise Rules, 2002 Act (hereafter the 'CE Rules'). The petitioner also claims that it had submitted necessary intimations for claiming such rebate on 30.05.2011 and 22.12.2014, which was prior to commencing export of goods. 4. By an order dated 19.03.2014, the concerned authority rejected the petitioner's claim on the ground that the goods were manufactured in the State of Uttarakhand, where certain exemptions were available and therefore, no refund could be claimed under Rule 5 of the CC Rules. The petit....

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....d not followed the procedure as set out in the Notification no.21/2004-CE(NT) dated 06.09.2004 inasmuch as the petitioner had not filed ARE-2 for export of the goods. The Appellate Authority referred to the decision dated 17.12.2013 of the Division Bench of the Madhya Pradesh High Court in M/s CIL Textiles Pvt. Ltd. v. UOI: W.P.(C) No.8199/2011, whereby the Madhya Pradesh High Court had held that submission of ARE-2 is mandatory and the failure to file the same would deprive the applicant the benefit under the Scheme. 10. Aggrieved by the aforementioned Orders-in-Appeal, the petitioner preferred revision petitions before the Central Government, which were rejected by a common order dated 06.08.2018. 11. As noted above, the said order is impugned in the present petition. 12. The principal controversy involved in the present petition is whether the petitioner can claim rebate under Rule 18 of the CE Rules. As noted above, in the first batch of cases, the Adjudicating Authority rejected the petitioner's application for refund under Rule 5 of the CE Rules without considering the question whether the petitioner was entitled to rebate under Rule 18 of the CE Rules. The petitione....

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....as been unable to trace out the said decisions of the Madhya Pradesh High Court. 18. In UM Cables Limited v. Union of India (supra), the Bombay High Court had referred to the decision of the Supreme Court in Mangalore Chemicals & Fertilizers Ltd. v. Deputy Commissioner: 1991 (55) E.L.T. 437 (SC) wherein distinction was drawn between conditions which are substantive and fundamental to the Policy for grant of exemption and those which are merely procedural. The Supreme Court had held that it would be erroneous to attach equal importance to non-observance of all conditions. The relevant observations of the Supreme Court are reproduced below: "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. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve." 19. The Bombay High Court noted the aforesaid passage and proceeded to hold as under: ".......mere non-production of the ARE-1 form would n....

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....ty on excisable goods, which were in fact imported on payment of excise duty from their respective factories. 21. It is informed that the judgment passed by the Gujarat High Court in Raj Petro Specialities (supra) has not been appealed against and is accepted by the Department. We also concur with the view taken by the Hon'ble Gujarat High Court and the Hon'ble Bombay High Court in the above referred cases. Therefore, the Appellate Authority fell in error in dismissing the appeal filed by the petitioner while relying upon the decision of the Madhya Pradesh High Court in M/s CIL Textiles Pvt. Ltd. (supra). 22. Mr. Gogna, however, submits that the claim of the petitioner was also rejected on the ground that as per the shipping bills produced by the petitioner, the goods were exported by M/s Bal Pharma Limited, Bangalore and not by the unit situated in Rudrapur. In that regard, the learned counsel for the petitioner refers to the decisions of the Central Government in Re: Pidilite Industries Ltd.: 2014 (311) E.L.T. 965, whereby the goods had been cleared from the factory premises to the godown of the applicant located at another city (Bhiwandi), which was not a registered wareho....