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TMI Blog2014 (12) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... rials on record would bind the revisional authority unless they are demonstrated to be perverse or vitiated by any error of law apparent on the face of the record. There is no warrant to interfere with the same unless these tests are satisfied. Order passed by the Revisional authority is unsustainable. It is manifestly illegal and erroneous. It is also vitiated by a non-application of mind to the vital materials, namely, the shipping bills and which contain the endorsement necessary for recording a finding that the goods were indeed exported by the petitioners. The date of the ARE-1 has also been mentioned there with other details. In such circumstances, the view taken by the revisional authority cannot be sustained - Following decision of UM Cables Ltd. Versus Union of India And Others [2013 (5) TMI 459 - BOMBAY HIGH COURT] - Decided in favour of assessee. - WRIT PETITION NO. 9269 OF 2013 - - - Dated:- 24-9-2014 - S.C. DHARMADHIKARI AND A.K. MENON, JJ. For The Petitioner : Jitendra Motwani For The Respondent : Pradeep S. Jetly and J.B. Mishra JUDGMENT 1. Rule. Respondents waive service. By consent, Rule made returnable forthwith. 2. By this Petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax (Appeals). 5. Aggrieved by the same, the present petition has been filed. 6. Mr. Motwani, learned counsel, appearing on behalf of the petitioner relied upon the Annexures to this Writ Petition and one of which is stated to be a photo copy of the application for removal of excisable goods for export styled as ARE-1. He further relied upon the contemporaneous record evidencing export and which was considered by the appellate authority. In his submission, the stand of the revisional authority and that of the Government is patently illegal. What is required to be furnished is proof of evidence of export. There is nothing magical about a particular form being forwarded. Therefore, insistence on a form or a photo copy of the same being forwarded, which is a procedural requirement could have been dispensed with. Mr. Motwani has relied upon the observations and findings in the order of the Commissioner of Income Tax (Appeals). 7. He has also relied upon a Division Bench judgment of this Court which has been delivered in identical circumstances, namely, Writ Petition Nos.3102 and 3103 of 2013 decided on 24th April, 2013 in the case of UM Cables Ltd. v. Union of India [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he held that the former carry the endorsement certificate of the Customs Officer regarding physical export of the goods. However, even if these originals and duplicate copies are not submitted, then, there were other documents like shipping bill dated 31st October, 2005 on which ARE-1 No.57 dated 29th October, 2005 was mentioned. The details of shipping bill, rotation number, sailing date were got verified by the adjudicating authority from the concerned customs range office and they were found to be correct. Hence, the rejection of the rebate claim only due to non-submission of original and photo copy of ARE-1 was not upheld by the Commissioner of Income Tax (Appeals). 10. We do not see how the revisional authority could have interfered with such an order. The scope of revisional proceedings is now well settled. The powers have to be exercised so as to correct a jurisdictional error. In the absence of a conclusion that the findings are vitiated by an error of jurisdiction or the jurisdiction has been exercised with material irregularity resulting in manifest injustice, the revisional authority should not have interfered with the orders under challenge. That is not a power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory or warehouse, except as otherwise permitted by the CBEC; that the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as may be allowed by the Commissioner; that the market price of the excisable goods at the time of export is not less than the amount of rebate of duty claimed and that no rebate on duty paid on excisable goods shall be granted where the export of the goods is prohibited under any law for the time being in force. The procedure governing the grant of rebate of central excise duty is specified in the same notification dated 6 September 2004 separately. Broadly speaking the procedure envisages that the exporter has to present four copies of an application in form ARE-1 to the Superintendent of Central Excise. The Superintendent has to verify the identify of the goods and the particulars of the duty paid and after sealing the packet or container, he is required to return the original and duplicate copies of the application to the exporter. The triplicate copy is to be sent to the officer with whom a rebate claim is to be filed either by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions and limitations on the one hand subject to which a rebate can be granted and the procedure governing the grant of a rebate on the other hand. While the conditions and limitations for the grant of rebate are mandatory, matters of procedure are directory. 13. A distinction between those regulatory provisions which are of a substantive character and those which are merely procedural or technical has been made in a judgment of the Supreme Court in Mangalore Chemicals Fertilizers Ltd. v. Deputy Commissioner1. The Supreme Court held that the mere fact that a provision is contained in a statutory instruction does not matter one way or the other . The Supreme Court held that non-compliance of a condition which is substantive and fundamental to the policy underlying the grant of an exemption would result in an invalidation of the claim. On the other hand, other requirements may merely belong to the area of procedure and it would be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes which they were intended to serve at paragraph 11. The Supreme Court held as follows : The mere fact that it is statutory does not matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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