1994 (3) TMI 120

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....ntral Excise duty paid on 23.353 MT of aluminium ingot cleared by M/s. NAL Co., Angul and exported to USSR through the IGI Airport, New Delhi. Asstt. Collector, Cuttack Division rejected the claim on the grounds that (i) M/s. NAL Co. are the exporters as shown in the shipping bill and not M/s. NFTDC (respondents in this case), (ii) the correlation between the goods cleared and the goods exported was difficult and (iii) there was non-observance of Chapter IX procedure of the Central Excise Rules, 1944 in terms of proviso (iv) to the Notification No. 197/62 dated 17-11-1962. 3. Collector (Appeals) in the impugned order set aside the Asstt. Collector's orders for the reasons which are discussed later in this order. 4. The applicant Collector....

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....y on export should not be denied for technical breach of some conditions. Even, Tribunal has held in Binny's case, relied upon by the respondents, that Collector (Appeals) is also competent to exercise the powers under Rule 12. Government of India have also in the case of M/s. Kannabiran Mills [1993 (66) E.L.T. 136 (GOI)] decided that Collector (Appeals) can rightly invoke the provisions of proviso to Rule 12 to condone in deserving cases delay in filing of rebate claims after the amendment of Notification No. 197/62, dated 17-11-1962 by Notification No. 27/89-(N.T.), dated 9-6-1989. 8. In short, thus, Collector (Appeals) was competent to grant relief after condoning under proviso to Rule 12 ibid compliance with conditions of Notification ....

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....nder Rule 12. Here too neither the Collector (Appeals) nor the (other) competent authority (Collector) have exercised the said power. Without this power being expressly exercised the appeal could not have been allowed by Collector (Appeals). 9. However, on competence of exporter to receive claim it is ruled by the Government that NFTDC can file and receive the claim as rightly concluded by Collector (Appeals). 10. Though this would have normally been a fit case for remand to the Collector (Appeals) in view of para 8 Supra. Since we are dealing with exports, Government will not like the exporters to run from pillar to post. The aforesaid two exercises have now fallen on Government to carry out. 11. It is seen from the records like GP 1 No....