2012 (6) TMI 774 - CGOVT - Central Excise

Denial of rebate claim - non-submission of some documents - failure to submit copies of relevant Bills of Export by the applicant - Commissioner (Appeals) allowed all the rebate claims on merit subject to factual verification by the original authority regarding genuineness of documents and endorsements on ARE-1 filed by party - Held that - Commissioner (Appeals) has dealt with in details in respect of two Orders-in-Original and allowed the rebate to respondent. Government concurs with the findings of Commissioner (Appeals) and directs the original authority to allow the rebate claims after carrying out verification as mentioned in Order-in-Appeal in respect of said two rebate claims. In terms of Para (5) of Board s Circular No. 29/2006-Cus., dated 27-12-2006, the supply from DTA to SEZ shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid thereon - In terms of sub-rule (5) of the Rule 30 of SEZ Rules, 2006, Bill of Export should be filed under the claim of drawback or DEPB, Though Bill of Export is required to be filed for making clearances to SEZ, yet the substantial benefit of rebate claim cannot be denied only for this lapse. Government further observes that Customs Officer of SEZ Unit has endorsed on ARE-1 that the goods have been duly received by them. As the duty paid nature of goods and supply the same to SEZ is not under dispute, the rebate on export of duty paid goods under Rule 18 of Central Excise Rules, 2008 is admissible, subject to verification from ARE-1 forms that goods were received in SEZ. Government also notes that, now, the applicant has now submitted copies of relevant BRCs which also proves that impugned goods were exported. - Decided against Revenue.

Summary

Issues Involved:
1. Rejection of rebate claims due to discrepancies in the Bill of Lading and non-submission of required documents.
2. The Commissioner (Appeals) remanding the case for verification without having the power to do so post-amendment in Section 35A(3) of the Central Excise Act, 1944.

Issue-Wise Detailed Analysis:

1. Rejection of Rebate Claims:
The main contention revolves around the rejection of rebate claims by the adjudicating authority due to discrepancies and non-submission of required documentation. Specifically:
- Order-in-Original No. R-184/09: The rebate claim was reduced by Rs. 65,553 due to a discrepancy in the Bill of Lading dates and a minor shortfall in the realized value.
- Order-in-Original No. R-172/09: A rebate claim of Rs. 49,238 was rejected because the party failed to submit a 'shipped on board certificate' or 'mate receipt'.
- Order-in-Original No. R-171/09: A rebate claim of Rs. 4,11,932 was rejected due to the non-submission of the 'bill of export' and the bank's certificate for export proceeds realization.
- Order-in-Original Nos. R-169/09, R-186/09, and R-187/09: Similar rejections were made due to the failure to submit the 'bill of export' and bank's certificate for export realization.

The Commissioner (Appeals) allowed the appeals, directing verification of the genuineness of documents and endorsements on ARE-1 forms. However, the department filed revision applications challenging this decision, arguing that the Commissioner (Appeals) lacked the authority to remand the case for de novo adjudication.

2. Authority of Commissioner (Appeals) Post-Amendment:
The department contended that the Commissioner (Appeals) erred in remanding the case for verification, as the power to remand was withdrawn with the amendment of Section 35A(3) of the Central Excise Act, 1944, effective from 11-5-2001. This argument is supported by the Supreme Court's judgment in the case of MIL India Ltd., which clarified that the Commissioner (Appeals) no longer holds the power to remand matters back to the adjudicating authority.

Government's Observations and Decision:
- Rebate Claims: The government noted that the Commissioner (Appeals) had allowed the rebate claims on merit, subject to factual verification. The findings of the Commissioner (Appeals) were not challenged on other grounds, indicating acceptance of the merit of the claims.
- Remand Power: The government accepted the department's contention regarding the withdrawal of remand powers post-amendment. The Commissioner (Appeals) should have decided the case at his level without remanding it.
- Verification and Rebate Sanction: The government directed the original authority to sanction the rebate claims after verifying the genuineness of documents and endorsements on ARE-1 forms, as mentioned in the Orders-in-Appeal.

Conclusion:
The revision applications were disposed of with directions to the original authority to carry out the necessary verification and subsequently sanction the rebate claims. The decision underscores the importance of adhering to procedural amendments and ensuring thorough verification of documentation in rebate claims.