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TMI Blog2013 (7) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-09/A.C.(Reb)/Raigad dated 12-5-2008 on the grounds that the excisable goods were not exported directly from the factory of manufacture. The claimant had procured the goods cleared from their factory of manufacture for home consumption and subsequently exported it under dealer's invoice issued from the above mentioned address and goods were cleared from their hired godown at Bhiwandi. The said godown was not approved by the department under Rule 20 of Central Excise Rules, 2002. Further, the identity/co-relation of the goods originally cleared from the manufacturing unit with goods cleared from the godown could not establish. It was also observed that the jurisdictional Superintendent has not supervised/verified the goods. 2.2 Aggrieved by this, the claimant filed appeal before Commissioner (Appeals). Commissioner (Appeals) while deciding the issue observed that the adjudicating authority rejected the claims on the ground that the goods had not been directly exported from a factory or warehouse. The warehouse from which the goods had been exported was a dealer's godown in which duty paid goods were being stored and it was not a warehouse approved under Rule 20 of Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Bureau and Central Bureau of Narcotics. The consignment was in United Nations approval HMDPE Drums and identification of the goods would not have posed any difficulty. There is no dispute about payment of duty and export of the goods. As such procedural infractions could not have deprived the applicants of the substantial right of rebate, particularly so when they had kept the Central Excise and NCB department informed at every stage. Hence, the Commissioner (Appeals) set aside the impugned order and allowed the appeal and directed the adjudicating authority to sanction the duty paid on the quantity actually exported. 3. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 3.1 The claimant had not exported the goods directly from the factory of manufacture or warehouse on payment of duty for export. The basic condition of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 "that the goods shall be exported after payment of duty directly from the factory of manufacture or warehouse". The claimant had procured the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise has not supervised/verified the goods and also there is no endorsement/signature on the copies of ARE-1 of Central Excise Officers, having been satisfied about the identity of the goods in question. 3.3 It was held by the Hon'ble High Court of Himachal Pradesh in case of Indian Overseas Corporation [2009 (234) E.L.T. 405 (H.P.)] that 'assessee not having exported goods after payment of duty directly from a factory or warehouse but had exported the same from a branch office'. The Tribunal was wrong in allowing rebate claim when goods were not exported directly from the factory or warehouse. Rely on Hon'ble Supreme Court decision in Mihir Textiles v. Collector of Customs, Bombay [1997 (92) E.L.T. 9 (S.C.)] it is held that when an assessee wants to take benefit of any rebate he must satisfy all the conditions which are necessary for availing the rebate. Rebate cannot be granted since mandatory conditions stipulated under Notification No. 41/94-C.E. (N.T.) not fulfilled. Further, in case of Ginni Filaments Ltd. [2005 (181) E.L.T. 145 (S.C.)], it was opined by the Apex Court that 'the notification has to be read on its own terms and conditions therein cannot be ignored merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records Government observes that the original adjudicating authority rejected the said rebate claim mainly on the ground that the duty paid goods were not exported directly from the factory of manufacture/approved godown (warehouse) in terms of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and Section 11B of Central Excise Act, 1944 read with Rule 18 of Central Excise Rules, 2002 and the identity/co-relation of the goods (originally removed from the manufacturing unit and finally cleared for export) and the duty paid thereon could not be established. Second ground for rejection of rebate claim is that claimant has not followed proper procedure laid down in C.B.E. & C. Circular No. 294/10/97-CX., dated 30-1-1997. Commissioner (Appeals) after due discussion and examining the ARE-1s held that the impugned goods were of duty paid nature as the identity of goods exported can be established with the goods cleared from factory on the basis of relevant documents. The applicant department has now contended in their revision application that the claimant had not exported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods cleared under the respective ARE-1s. Identification marks and Batch numbers on the packages are not the only means to identify the goods. It could be done from other means also. The goods involved in the instant case was Acetic Anhydride, which is a "controlled substance" under Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993, issued under Section 9A of Narcotic Drugs and Psychotropic Substances Act, 1985 in accordance with United Nations convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Clause 4 of the said order requires that the movement of the controlled substance be made under a consignment note in Form 3. The duplicate copy of the said note has to be returned to the consignor by the consignee after endorsement of the quantity received. Sub-clause (6) prohibits movement of controlled substance by transporters without a consignment note. The said consignment note has to be produced wherever and whenever sealing of inlet and outlet of the tankers with tamper proof seal and the description of the said seals has to be entered in the consignment note in Form 3. A quarterly report has to be sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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