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TMI Blog2014 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... followed. So, it is clear that ARE-1 is the basic and essential export document for such exports for which impugned rebate claims have been filed. The ARE-1 form is an application for removal of excisable goods for export. In the absence of main document ARE-1 and without following the procedure described above, it cannot be established that same goods which were cleared from factory were actually exported. Since original ARE-1 is not produced, the duty paid character of exported goods cannot be established - When non-compliance of said requirement leads to any specific/odd consequences then it would be difficult to hold that requirement as non-mandatory. As such there is no force in the plea of the applicant that this lapse should be considered on a procedural lapse of technical nature which is condonable in term of case laws cited by applicant. 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-submission of statutory document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also filed an indemnity bond in lieu of the above documents lost. It was held that it is mandatory to establish that the goods are exported as per the conditions laid down under Section 11B of the Central Excise Act, 1944 read with Rule 18 of the Central Excise Rules, 2002 and Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001. It was also held that in this case of rebate, the conditions are not directory but are mandatory and in the absence of all the documents, the rebate sanctioning authority cannot arrive at the required satisfaction. It was held that the claimant had filed to follow the Central Excise Procedure. The adjudicating authority vide the impugned order-in-original rejected the rebate claim involving duty amount of Rs. 10,70,353/-. 3. Being aggrieved by the said order-in-original, respondent filed appeal before Commissioner (Appeals) who allowed the same. 4. 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 : 4.1 Commissioner (Appeals) has erred in not appreciating that the conditions, limitations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, no parallel provisions has been provided for claim of rebate in case of loss of documents when goods are exported under claim of rebate, and in the absence of such a procedure, the Commissioner (Appeals) erred in holding the condition of submission original/duplicate copy of ARE-1, in original, as prescribed. 4.3 The Commissioner (Appeals), Central Excise, Mumbai Zone-II also erred in holding that the right to rebate on export of excisable goods is granted by statute and that the documents listed in the notifications and departmental instructions are only evidence of the occurrence/event, to which they relate to. This view is neither correct nor acceptable, as there is no provision in the Central Excise Act, 1944 and the Rules made thereunder, for granting rebate on the basis of reconstructed/photocopies of the statutory documents, and the requirement of original statutory documents is not merely a procedural formality but an essential requirement for establishing proof of export of goods and payment of duty. 4.4 The issue in dispute in the present case is covered in the following cases holding that the basis of photocopies of documents have no evidence and liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssly erred in submitting that the provisions of Para 13.7 of the CBEC Manual of Central Excise procedure can be applied only to the removal of the goods under Bond and not to the removal of the goods under claim for rebate of duty. 5.3 It is also submitted that grant of rebate of the export goods is a substantial right given to an exporter under the Central Excise law, and therefore, the Commissioner (Appeals) has rightly held that the substantial right to rebate cannot be denied merely on the grounds of non-submission of original copies of ARE-1, when from other documents it is established that the duty paid goods have been duly exported. It is noteworthy that while arriving at the above conclusion, the Commissioner (Appeals) has taken into consideration and has followed the settled law on the subject, as laid down by a catena of judicial pronouncements on the subject. 5.4 It is now a well settled legal position that if it is established from various other evidences, including triplicate copy of ARE-1, Central Excise invoice, bill of lading, shipping bill, export invoice, mate receipt, bank realization certificate, etc. that the duty paid goods have been duly exported, then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and order-in-appeal. 8. On perusal of records, Government observes that respondent had filed rebate claim without original and duplicate copies of ARE-1 as the same were claimed to be lost by them. Assistant Commissioner of Central Excise rejected the claim but on appeal filed by the respondent, Commissioner (Appeals) allowed the rebate claim. Now, department has filed this revision application on the grounds stated in Para 4 above. 9. The applicant has mainly argued that there is a settled law that substantive benefits cannot be denied for procedural lapses. The non-submission of Original and duplicate copies of ARE-1 is a procedural lapse which may be condoned. He has relied upon a number of case law. 9.1 Government notes that the applicant failed to comply with the proper procedure as laid down in Notification No. 19/2004-C.E. (N.T.) dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002. As per Para 3(B)(1) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 read with Para 8.4 of Chapter 8 of CBEC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A request on the letterhead of the exporter containing claim of rebate, A.R.E. 1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each A.R.E. 1 and its calculations, (ii) Original copy of the A.R.E. 1, (iii) Invoice issued under Rule 11, (iv) Self attested copy of shipping bill, and (v) Self attested copy of Bill of Lading. (vi) Disclaimer Certificate [in case where claimant is other than exporter] 8.4 After satisfying himself that the goods cleared for export under the relevant A.R.E. 1 applications mentioned in the claim were actually exported, as evident by the original and duplicate copies of A.R.E. 1 duly certified by Customs, and that the goods are of duty-paid character as certified on the triplicate copy of A.R.E. 1 received from the jurisdictional Superintendent of Central Excise (Range Office), the rebate sanctioning authority shall sanction the rebate, in part or full. In case of any reduction or rejection of the claim, an opportunity shall be provided to the exporter to explain the case and a reasoned order shall be issued. As per these provisions documents mentioned at Sr. No. (i) to (vi) of Para 8.3 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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