TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 930
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....its manufacturing unit situated at Industrial Area No. 3, Dewas, Madhya Pradesh and is engaged in the manufacture and sale of P & P Medicaments falling under Chapters 29 and 30 of the First Schedule to the Central Excise Tariff Act, 1985. The petitioner manufactures pharmaceutical formulations and sells them, both in the domestic market as well as through export to other countries. Petitioner also exported samples of its finished products to overseas markets for promotional purposes, and originally this export of samples was done without payment of duty under the cover of prescribed statutory Form ARE-1 (Application for Removal of Excisable Goods for Export), and the goods were cleared directly from the factory. 3. The Superintendent of Central Excise, Dewas Range-II vide communication dated 16.09.2002 advised the petitioner that there was no provision for duty-free clearance of export samples under the Central Excise Rules, 2002 and that the samples intended for export were required to be cleared on payment of duty under cover of invoice prepared in accordance with Rule 11 of the Central Excise Rules. Pursuant to the aforesaid communication, petitioner began clearing the said sam....
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....dicated the show-cause notices and passed two separate orders in original dated 31.08.2004, rejecting the rebate claims on the ground that the petitioner had not filed ARE-1 forms and had not followed the prescribed procedure and that since the goods were not exported directly from the factory, the claims could not be entertained. Being aggrieved by the orders dated 31.08.2004, petitioner preferred two appeals before the Commissioner (Appeals), Central Excise, Indore on 27.10.2004 which was decided by a common order dated 30.11.2004 whereby the appeals were allowed observing that the substantial conditions for grant of rebate had been fulfilled and that the goods had been exported after payment of duty relying on various decisions of the CESTAT. 6. Aggrieved by the said appellate order, the department preferred a revision application under Section 35EE of the Act of 1944 before the Joint Secretary, Ministry of Finance, Government of India. The petitioner filed cross-objections, appeared through counsel at the personal hearing and submitted that there was no factual dispute regarding the export of the same goods and that denial of rebate on hyper-technical grounds was impermissible....
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....on suspicion and conjecture because at no point was the export of goods disputed by any authority having full knowledge of the procedures followed. 8. Learned Counsel further submitted that the absence of procedural forms such as ARE-1 could not defeat the substantive claim for rebate, particularly when the goods were admittedly exported and the correlation between the exported goods and the duty-paid goods was fully established. The omission of Form ARE-1 is due to the instructions issued by the Department itself, which had previously directed the petitioner to follow a different procedure for sample exports. It is a settled legal principle that procedural lapses cannot defeat substantive rights under beneficial fiscal legislation. 9. In support of his contention, learned counsel has referred to the relevant provisions of the Central Excise Act, 1944, the Central Excise Rules, 2002 as well as the CBEC Excise Manual and Circular No. 294/10/94-CX dated 30.01.1997 and further placed reliance on judgments of High Courts in U.M. Cables v. Union of India reported in 2013 (293) E.L.T. 641 (Bom); Raj Petro Specialities v. Union of India reported in 2017 (345) E.L.T. 496 (Guj); Aarti Ind....
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....r of law or jurisdiction, as the Joint Secretary had exercised his revisional powers in accordance with law, having found that the order passed by the Commissioner was erroneous and unsustainable. Hence, the petition is liable to be dismissed. 12. In support of his contention, learned Counsel for the respondent has placed reliance on judgments of the Hon'ble Apex Court and High Courts in case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company reported in (2018) 361 ELT 577 (SC); Indian Aluminum Co. Ltd. v. Thane Municipal Corporation reported in 1991 (55) ELT 454 (SC); Kedarnath Jute Manufacturing Co. Ltd. v. Commissioner of Tax Officer reported in AIR 1966 SC 12.; Saraswati Sugar Mills v. CCE, New Delhi -II reported in (2011) 270 ELT 465 (SC) and MPD Industries Pvt. Ltd. v. Union of India reported in 2020 (372) ELT 638 (MP). Appreciation and Conclusion 13. The admitted facts of the case are that the petitioner is engaged in the business of manufacture and sale of P & P Medicaments falling under Chapters 29 and 30 of the First Schedule to the Central Excise Tariff Act, 1985. The petitioner cleared the sample of P & P Medicaments for its own concern in the name ....
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....e may be. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Principal Commissioner or Commissioner, as the case may be. (3) The export under sub-rule (1) or sub-rule (2) shall be subject to such conditions, safeguards and procedure as may be specified by notification by the Board. RULE 20. Ware housing provisions. - (1) The Central Government may by notification, extend the facility of removal of any excisable goods from the factory of production to a warehouse, or from one warehouse to another warehouse without payment of duty. (2) The facility under sub-rule (1) shall be available subject to such conditions, including penalty and interest, limitations, including limitation with respect to the period for which the goods may remain in the warehouse, and safeguards and procedure, including in the matters relating to dispatch, movement, receipt, accountal and disposal of such goods, as may be specified by the Board. (3) The responsibility for payment of duty on the goods that are remo....
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....nsignments with the particulars as cited in the application (A.R.E.1) and if he finds that the same are correct and the goods are exportable in accordance with the laws for the time being in force (for example, they are not prohibited or restricted from being exported), shall allow export thereof. Thereafter, he will certify on the copies of the A.R.E.1 that the goods have been duly exported citing the shipping bill number and date and other particulars of export. 7.5 The officers of customs shall return the original and quintuplicate (optional copy for exporter) copies of application to the exproter and forward the duplicate copy of application either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the application, from whome exporter wants to claim rebate. However, where exporter claims rebate by electronic declaration on Electronic Data Inter-change system of Customs, the duplicate shall be sent to the Excise Rebate Audit Section at the place of export. 7.6 The exporter shall use the quituplicate copy for the purposes of claiming any other export incentive. 17. As per sub-clause 7.2, the exporter shall present together w....
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....M.Cables (supra), the ARE-1 forms were prepared, but the original and the duplicate were lost, for which an FIR was also lodged. Therefore, the Court has held that from other documents, the burden can be discharged. But in the present case, the ARE-1 was not prepared at all, which is mandatory under the Central Excise Act, 1944 and the Rules of 2002. Shri Arora, learned Counsel, has also placed reliance on the judgment passed by the Division Bench of High Court of Gujarat at Ahmedabad in the case of Raj Petro Specialities (supra) wherein the original ARE-1 were lost/stolen for which an FIR came to be lodged at the Police Station. Therefore, the two cases relied upon by the learned Counsel for the petitioner i.e. U.M.Cables and Raj Petro Specialities (supra), will not be of any help to the petitioner. 22. On the other hand, Shri Prasanna Prasad, learned counsel for the respondent has produced the copy of Notification No. 42/2001-CE(NT) dated 26.06.2001 issued in exercise of powers conferred by sub-rule (3) of rule 19 of the Central Excise Rules, 2001 notifying the conditions and procedure for export of all the excisable goods without payment of duty from the factory or the warehous....
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................ under Rule 19 of Central Excise (No.2) Rules, 2001 with the.....................................[F.No.___________________], duly accepted by the Assistant Commissioner/Deputy Commissioner of Central Excise________ on _________(Date). 2. Certified that I have opened and examined the packages No..... ............................................................ and found that the particulars stated and the description of goods given overleaf and the packing list (if any) are correct and that all the packages have been stuffed in the container No. ............... with Marks .................. and the same has been sealed with Central Excise Seal/One Time Seal (OTS) No. ............. 3. I have verified with the records, the exporter is only availing the export incentives, as specified in box No.6. and found it to be true. 4. Certified that I have drawn three representative samples from the consignment (wherever necessary) and have handed over, two sets thereof duly sealed to the exporter/his authorised representative. Place..................... Date ........................ Signature (Name in Block Letters) Superintendent of Central Excise Signature (Name ....
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....ubmitted that the scope of judicial review is very limited under Articles 226 and 227 of the Constitution of India as held by the Apex Court in case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, (2010) 8 SCC 329. The relevant paragraph No. 49 of the order is reproduced hereunder : "On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ The jurisdiction of High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it....