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TMI Blog2014 (1) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is the foundation in respect of verification of commodity sought to be exported and its exportability etc. is not mandatory but directory or condonable. I find no hesitation in confirming the view taken by respondent no. 1 that the procedure laid down in notification dated 06.09.2004 with respect to filing of ARE-I is mandatory. Explanation offered by petitioner that due to ignorance of law he could not follow the procedure of filing ARE-I, also does not appear to be genuine and creditworthy. It is not the case of the petitioner that the export in question is his first transaction of export. He himself claimed to be a "Merchant Exporter" and dealing in export transactions. Such a person, if claim that he was not aware of the procedure, is very dubious statement and it is difficult to belief it - procedure with respect filing of ARE-I, looking from the view of straight and simple principle of interpretation, as also looking from the angle of its objective, purpose etc., in my view, is obligatory, the order impugned in the writ petition, cannot held faulty in any manner - Decided against assessee. - WRIT TAX No. - 1020 of 2013 - - - Dated:- 7-1-2014 - Mr. Sudhir Agarwal,J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in compliance of procedure prescribed for claiming rebate, could be condoned or omitted. Pursuant thereto, the Commissioner (Appeals) decided appeal afresh vide order dated 24.02.2011. It allowed the appeal holding that petitioner had submitted all relevant documents except ARE-I. He held that the procedure to file ARE-I was not followed which is only a procedural and technical infraction and is condonable in view of Tribunal's decision in Home Care (I) Pvt. Ltd. Vs. CCE, Delhi, 2006(197) ELT 110 (Delhi). It also relied on an earlier decision of Government of India in a revision preferred by one M/s Harison Chemicals, reported in 2006(200) ELT 171. The Department carried the matter again to Government of India by filing four revisions, which have now been allowed vide order dated 18.06.2013 (issued on 19.06.2013), served on petitioner on 30.06.2013 and it is this order which is impugned in this writ petition. 6. Sri A.P. Mathur, learned counsel for the petitioner, contended that respondent no. 1 has completely misdirected itself by holding that procedure with regard to filing of ARE-I was mandatory and it has also erred in law in distinguishing the decisions of Delhi Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued in supersession of Ministry of Finance, Department of Revenue's earlier notification dated 26.06.2001, in so far as it relates to export to countries other than Nepal and Bhutan. It further says that there shall be granted rebate of the whole of the duty paid on all excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985, exported to any country other than Nepal and Bhutan, subject to the conditions, limitations and procedures specified in the notification. 12. In Para (3)(a)(iv) of the notification it is said that exporter shall present goods along with four copies of application in Form ARE-I, specified in the Annexure to notification, to the Superintendent or Inspector of Central Excise, having jurisdiction over the factory of production or manufacture or warehouse. 13. Para (3)(a)(v) then provides that Superintendent or Inspector of Central Excise shall verify the identity of goods mentioned in the application and the particulars of the duty paid or payable, and if found in order, shall seal each package or the container in the manner as may be specified by Commissioner of Central Excise and endorse each copy of the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xiv), read as under: "(xiii) On arrival at the place of export, the goods shall be presented together with original, duplicate and quadruplicate (optional) copies of the application to the Commissioner of Customs or other duly appointed officer; (xiv) The Commissioner of Customs or other duly appointed officer shall examine the consignments with the particulars as cited in the application and if he finds that the same are correct and exportable in accordance with the laws for the time being in force, shall allow export thereof and certify on the copies of the application that the goods have been duly exported citing the shipping bill number and date and other particulars of export: Provided that if the Superintendent or Inspector of Central Excise sealed packages or container at the place of dispatch, the officer of customs shall inspect the packages or container with reference to declarations in the application to satisfy himself about the exportability thereof and if the seals are found intact, he shall allow export." 20. The purpose of aforesaid procedure has been highlighted by respondent no. 1 in the impugned order dated 18.06.2013 by observing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of filing ARE-I is given a go-bye, the authorities available on spot shall not be able to verify that the goods sought to be exported are same, the description whereof has been mentioned in the vouchers or not. The objective is very clear. It is to avoid surreptitious and bogus export and also to mitigate any paper transaction. 24. It also cannot be doubted that ignorance of law is no excuse to follow something which is required to be done by law in a particular manner. It is well established that when law requires something to be done in a particular manner, any other procedure adopted or the procedure deviated or not followed would be illegal inasmuch as, one has to proceed only in the manner prescribed under law. The principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which we do not propose to refer all but would like to refer a few recent one. 25. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held: "It is a settled principle of law that where a power is given to do a certain thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India has also to lay down the procedure which will discourage mischievous and scrupulous persons in indulging in any mischief. At every stage, officials of respondents-authorities would come into picture to verify the exact commodity etc. which is sought to be exported in respect whereof rebate is being claimed. This is to verify that the goods actually exported are same of description, value etc., as claimed. 32. The notification dated 06.09.2004 very clearly has said that rebate can be claimed in the manner the procedure has been laid down therein. It is difficult to hold that detail procedure regarding filing of ARE-I, which is the foundation in respect of verification of commodity sought to be exported and its exportability etc. is not mandatory but directory or condonable. I find no hesitation in confirming the view taken by respondent no. 1 that the procedure laid down in notification dated 06.09.2004 with respect to filing of ARE-I is mandatory. 33. Coming to the authorities referred, I find that the Home Care (I) Pvt. Ltd. (supra) was not a case relating to export rebate and the provisions of Rule 18 of Rules, 2002 and the notification issued thereund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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