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TMI Blog2013 (8) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... Seeds' falling under chapter heading 1207 of 1st Schedule to the Central Excise Tariff Act, 1985. The applicant was granted permission by KSEZ for DTA sale. Accordingly the applicant had made clearances of 'Hulled Sesame Seeds' to Domestic Tariff Area under payment of duty. The applicant had filed the application for refund of Rs. 25,27,927/- on 25-7-2007 initially on the ground that the product Sesame seeds are exempted in DTA and subsequently claim the refund on the ground that the goods cleared in DTA were ultimately exported. The Deputy Commissioner, Central Excise, Kalol Division, Ahmedabad-III, vide OIO No. 39/Ref/2008-09 dated 21-10-2008, rejected the application for the refund of Rs. 25,27,927/-. Aggrieved by the said impugned order, the applicant had filed the appeal which was decided vide OIA No. 50/2009 (Ahd-III) CE/KCG/Commr(A), dated 13-2-2009 and the matter was remanded back to the original authority for considering the documents related to the export of goods as submitted by the applicant and decide the matter on merit. 2.1 The Deputy Commissioner, Central Excise, Kalol Division, Kalol vide OIO No. 03/Ref/2009-10 dated 20-4-2009 again rejected the said refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of goods as no procedure relating to clearance of goods for export was followed in this case. The goods were not removed by the assessee under ARE-1 and no procedure relating to examination and sealing of goods by the Central Excise Officer or self sealing and self certification was followed. These goods were never presented to the concerned custom authorities with reference to any ARE-1 of the assessee. All these facts fully establishes that the assessee had cleared the goods as DTA sale only and these were not exported by the assessee. Therefore, the duty paid by the assessee was proper and legal. If these goods were exported at all, these were exported by merchant exporters and not by the assessee. 3.2 It is also evident from the Central Excise Invoices issued by the assessee under the Rule 11 of the Central Excise Rules, 2002 to its customers that the excise duty has been passed on. Hence, the assessee is not eligible for refund of the duty as per Section 11B of the Central Excise Act, 1944, Since the assessee did not export the goods, they could not be given the rebate of duty. 3.3 Where the goods are cleared on payment of duty and exported, the exporter or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completely ignored by the Commissioner (Appeals) while holding that the goods cleared by the assessee to DTA have been exported. 3.5 The Commissioner (Appeals)'s reliance upon CESTAT's order in the case of Khabros Steel India Ltd. v. CCE, Jaipur, reported in 2002 (141) E.L.T. 257 (Tri.) and Alsa Marine & Harvest Ltd. v. CCE, Visakhapatnam, reported in 2003 (158) E.L.T. 741 (Tri.) is also misplaced as in the case of Alsa Marine & Harvest Ltd. there was no doubt that the goods cleared from EOU were exported and in Khabros Steel case, the CESTAT has merely remanded the case to Commission for de novo consideration to verify the exports. Whereas in this case, as explained above, the goods cleared in DTA could not be correlated to goods exported by merchant exporters. 3.6 In view of the above, the captioned order-in-appeal, passed by the Commissioner (Appeals), Ahmedabad-III, is not legal and proper. 4. A show cause notice was issued to the respondent on 8-3-2010 under Section 35EE of Central Excise Act, 1944 to file their counter reply. Respondents vide their written reply dated 27-3-2010 made following submissions : 4.1 The observation that procedure prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well settled legal position that the Government has no right to retain the money collected without the authority of law and the Government is duty bound to return the money so collected to the person from whom it is collected. The provisions of unjust enrichment would not be applicable to the return of the money collected without the authority of law as the said 'money' is not a 'duty' to which the provisions of Section 11B of the Central Excise Act, 1944 could be applied. 5. Personal hearing was scheduled in this case on 3-2-2011 and 10-5-2011. Shri R.S. Sharma, Advocate attended hearing on behalf of the respondent on 10-5-2011 and reiterated the written submissions made in their written reply dated 27-7-2010. Shri Ram Avtar Meena, Superintendent of Central Excise had attended hearing on 3-2-2011 on behalf of applicant department and reiterated the ground of revision application. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government observes that Commissioner (Appeals) vide order-in-appeal No. 321/09 (Ahd-III) KCG/CE/Commr.(A), dated 9-9-2009 has all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrelated with goods cleared in DTA. 9. The Commissioner (Appeals)'s reliance upon CESTAT's order in the case of Khabros Steel India Ltd. v. CCE Jaipur, reported in 2002 (141) E.L.T. 257 (Tri.) and Alsa Marine & Harvest Ltd. v. CCE, Visakhapatnam, reported in 2003 (158) E.L.T. 741 (Tri.) is also misplaced as in the case of Alsa Marine & Harvest Ltd. there was no doubt that the goods cleared from EOU were exported and in Khabros Steel case, the CESTAT has merely remanded the case to Commissioner for de novo consideration to verify the exports. Whereas in this case, as explained above, the goods cleared in DTA could not be correlated to goods exported by merchant exporters. 10. Government notes that as per Para 3(B)(1) of Notification No. 119/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of Central Excise Rules, read with Para 8.4 of Chapter 8 of C.B.E. & C. Excise Manual of Supplementary Instructions, the goods shall be exported on the application in Form ARE-1 specified in the annexure to Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and procedures as specified in Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 shall be followed. So, it is clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f case laws cited by applicant. The Hon'ble Supreme Court in the case of J. Yashoda v. Shobha Rani [2007 (212) E.L.T. 458 (S.C.)] has discussed Sections 63, 64 & 65 of Evidence Act, 1872 and therein upheld the High Court view and held that the photocopies cannot be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received since the documents in question were admittedly photocopies, there was no possibility of the documents being compared with the originals. Government, therefore holds that non-preparation of statutory document of ARE-I and not following the basic procedure of export goods as discussed above, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty on the materials used in the manufacture of impugned exported goods. 12. In view of above discussion and findings, Government hold that the goods exported cannot be correlated with goods cleared in DTA. As such the duty paid on goods exported is not proved. Since the fundamental requirement of export of duty paid goods is not satisfied the rebate claim is not admissible to the applicant in the instant case under Rule 18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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