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TMI Blog2014 (12) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... as the ARE Is, Shipping Bill, Invoice and Pan Masala Pouches/packages bear the Mark Nos/Batch Nos. of the goods The ratio of the GOI Order No. 54 to 60/09 dated 5.02. 09 in the case of M/s Gujarat Trading Co., Rajkot vs. CCE Rajkot is squarely applicable in this case wherein it has been held that where the exported goods are corelatable with the goods cleared from the factory of manufacture or warehouse, the Procedure prescribed for merchant exporter exporting the goods from a place other than factory of manufacturer or warehouse by the CBEC's Circular 294/10/97-CX dated 30.01.1997 can be relaxed and the rebate is admissible for merchant exporter. Govt. further observes that rebate/drawback etc. are export-oriented schemes. A merely technical: interpretation of procedures etc. is to be best avoided if the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical lapse. In Suksha International Vs- UOI [1989 (1) TMI 316 - SUPREME COURT], the Hon'ble Supreme Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the goods as per Para 8.3 of the Board`s Circular has been done for identifying the goods. The Superintendent in charge has not certified the correctness of duty payment on Triplicate copy of AREIs. d) further the rebate sanctioning authority observed that the exporter has not taken any prior permission from jurisdictional Commissioner for the removal of goods for export from a premises other than factory. Moreover permission granted by the Chief Commissioner dated 17.09.12 are subject to certain conditions. Also the said permission pertains to a period after the subject shipment. e) the export goods are not clearly identifiable co-related with the goods cleared from the factory on payment of duty. f) the applicant have not followed the procedure prescribed under Para 8.1 to 8.4 8.6 of the Board's Circular. 2.1 In case of Sr.No.(1) of table above, the original authority sanctioned 3 Being aggrieved by the said orders-in-original covered vide cases mentioned at Sr.No.(2) (3), applicant filed appeals before Commissioner (Appeals). In case of orders-in-original No. mentioned at Sr.No.(1), department filed appeal before Commissioner (Appeals). Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 dated 20.05.2011 (issued on 23. 05.2011) with instructions to follow procedure under Board Circular dated 30.01.1997. Copy of the said Application dated 21.04.2011 the Department's Permission dated 23.05.2011 are annexed. Under the above facts and circumstances and the documentary evidence adduced, which was already on the record of the Department as well as placed before the Respondent, the above observation of the Respondent that it was a fact that the goods were neither exported directly from the factory or a ware house and that under the circumstances the applicant could have exported the goods only upon special or general order issued by CBEC is utterly deplorable as the respondent has not even bothered to take any cognizance of the same nor has given any reason for non-cognizance of the same. It is therefore clear that the impugned Order has been issued mechanically without any application of mind and without considering the documentary evidence on record. Resultantly, the impugned Order-in-Appeal which has been issued without even considering the documentary evidence of the Department itself, submitted by the Applicant, including the two diagonically opposite Orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant, in their application dated 21-04-2011 had clearly mentioned that for the purpose of identification of the goods, they would be marking each of the goods (Scrap of Ship Propeller parts), a Running Serial Number for each Financial Year starting with NPRS 01 to NPPS 42,03,04 and so on, with Oil paint. In fact, the applicant had inscribed the said running numbers on each piece and painted with red colour paint for ease of identification, which has been duly verified by the Central Excise Officers supervising the exports. The Department has granted permission to the Applicant vide their letter dated 20-05-2011 only after ensuring the safeguard of Government Revenue and taking cognizance of the Identification numbers inscribed and painted by the applicant on each piece of scrap exported. The ARE -1 Forms, the invoice of the Original manufacturer, the Shipping Bills, the bills of lading the packing list and customs invoice of the applicant, all have these' identification marks which-'are, co-relating with each other. In fact, in the previous Order, the Original Rebate Sanctioning Authority had certified that the description and quantity of the goods as mentioned in ARE-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 04-01-2013 for payment of Merchant Overtime Fees of ₹ 41,335.00 to the department, which includes the Merchant Overtime fees for the subject consignments, alleged to have been not supervised by the Central excise Officer as no patent endorsement of having done the same was put by the Officers. 4.6 The applicant wish to state and submits that the respondent has failed to take any cognizance of the submissions put forth by the applicant in their appeal that the permission for export from the said premises had been granted to them by the Deputy Commissioner, Belapur long back vide letter date 20-05-2011 but since the Department had withheld exports for further clarification, the applicant were constrained to approach the Chief Commissioner of Central Excise vide representation dated 05-09-2012, whose Officer after calling for report from Jurisdictional Commissioner, had vide Para 2 of their letter F.No.IV /16-91/CCO-II/MCX/2012/7866 dated 17.09.2012 addressed to the Commissioner of Central Excise, Belapur, agreed to allow the applicant to export goods from their storage premises at Mahape under the supervision of jurisdictional Range Officers subject to the condition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-appeal dated 27-12-2012, the Commissioner (Appeals) has stated that since although the Officers had signed the ARE-' farms on the reverse but no endorsement as to what had been verified was not written in the said ARE-1, it was relevant to take the concerned officers submissions to verify the veracity of the applicant as to what they had confirmed by putting their signatures and hence concerned superintendent and inspector were called for on 20.12. 2012 and the Officers, vide their letter dated 20-12-2012 had given their version of the export procedure, relevant portion of which has been reproduced verbatim by the respondent in her Order and has concluded that the statement of the Officers confirmed that the goods exported were identified with the goods purchased and hence the applicant had followed the procedure as laid down in the Board Circular dated 30-01-1997. The respondent has not-taken any cognizance of the concerns voiced by the applicant that it is a matter of concern for the applicant as to what constitutes verification by the range superintendent. It is generally accepted that countersigning the ARE 1 form on the reverse by the range superintendent implies tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et the same. The Respondent has also relied upon the Honourable Apex Court judgement in the case of CCE, Chandigarh Vs Doaba Steel Rolling Mills reported in 2011 (269) ELT 298 (SC) regarding non-challenge of precedent orders and has concluded by holding the rebate claims inadmissible. Without prejudice to whatever, is stated hereinabove, the applicant wish to state and submit that they are indeed appalled at the contradictory stand taken by the respondent. While on the one hand the respondent refuses to look into the Original Orders Nos. 2759/12-13/Deputy Commissioner(Rebate) Raigad dated 01.02.2013, 2875/12-13/ Deputy Commissioner (Rebate)/Raigad dated 20.02.13 and 2938/12-13/Deputy Commissioner(Rebate)/Raigad dated 26.02.13 issued in identical matter, whereby the Original Authority has sanctioned the subsequent Rebate claims of the applicant taking cognizance of the Order-in-Appeal No BC/369/ Rgd/12-13 dated 31-10-2012 order-in-appeal No.BC/488/BEL/2012-13 dated 27.12.2012 (Issued on 15-01-2013), which were all placed before him, and has chosen to rely on Order-in-Appeal No. BC/369/Rgd/12-13 dated 31-10-2012 which is earlier Order of the same Commissioner (Appeals) in the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case file, oral written submissions and perused the impugned orders-in-original and orders-in-appeal. 7. Government observes that the applicant is a merchant exporter, who exported the goods viz. scraps of propeller obtained from breaking of ships, boats and floating structures after procuring from various manufacturers/ship breaking units on payment of duty. The revenue sought to deny the benefit on the ground that the impugned goods have been cleared/exported from a premise other than manufacturing unit; that the goods being scrap, does not have a unique or standard identification mark and hence, are not eligible for waiver from direct exports from the factory or warehouse as envisaged under Board's circular dated 30.1.1997; that no prior permission was obtained from jurisdictional Commissioner for removal of goods for export from a premises other than factory; that permission granted by the Chief Commissioner dated 17.9.2012 are subjected to certain conditions and such permission pertains to a period after the subject shipment. Commissioner (Appeals) decided all the cases in favour of department. Now, applicant has filed these revision applications on grounds mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se under different invoices or from the different factories/ warehouses On each such form it should be indicated prominently that the goods are for export under claim of rebate of duty . 8.3 On receipt of the above application and particulars, the particulars of the packages/ goods lying stored should be verified with the particulars given in the application and the AR-4 form, in such manner and according to such procedure as may be prescribed by the Commissioner. 8.4 If the Central Excise Officer deputed for verification of the goods for export is satisfied about the identity of the goods, its duty paid character and all other particulars given by the exporter in his application and AR-4, he will endorse such forms and permit the export. 8.5 The exporter will have to pay the supervision charges at the prescribed rates for the services of the Central Excise Officer deputed for the purpose . 8.6 The disposal of different copies of AR-4 forms should be in the following manner. i) the original and duplicate copies are to be returned to the exporter for being presented by him alongwith his shipping bill, other documents and export consignment at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt over-time fees (MOT) to the department and as a proof of this, they submitted list of export-wise MOT fee payment detail and the copy of online GAR-7 challan dated 4.1.2013 for payment of MOT fees of ₹ 41,335.60 to the department. A specific reference vide this office letter dated 3.9.14 was made to the Commissioner of Central Excise, Belapur, in whose jurisdiction the manufacture/place of removal of goods falls, to the Applicant s contention that they paid MOT fees and hence, their goods were examined under the supervision of central excise officers. The Deputy Commissioner of Central Excise, Division-III, Belapur, vide letter dated 9.10.14 has stated as under: In this connection, it is to report that the impugned exported goods were cleared under Central supervision from 3.10.12 onwards in terms of Letter of Factory Stuffing Permission No. 549/2012-13 dated 5.10 2012 issued by Deputy Commissioner of Customs, FSP Cell, Nhava Sheva under F.No.S/6-Gen 543/12-13 EXP FSP dated 5.10.12. Prior to the said period no such supervisions for the clearances of export are forthcoming from the records such as ARE-1 certification and other records maintained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Invoices of Ship breakers During the examination, at the time export of the above mentioned goods, from the premises of M/s Neptunus Power Plant Services Ltd. Mahape, we have physically examined the numbers engraved on the pieces of scrap of propellers and to/lied the same with Sr. Nos. appearing on the corresponding Invoices issued by the ship breakers In token Of having identified, the goods with relevant invoices of ship breakers and having tallied other relevant details on die Invoices with the details appearing on the first page of the ARE-1, we have signed the AREIs at the second page where there is place for signature- of the Range Officers lie above statement confirms that the goods, expoited were identified with the goods purchased Hence, tine respondents have followed the procedure as laid down in Board Circular dated 30.01.97. Before I proceed further, I observe that an appeal with similar issue was filed by the Department against the OIO No. BEL/DN-III/R-V/SBS/AC/109 dated 21.5.12. The said appeal has been decided by me vide OIA No. BC/369/BEL/2012-13 dated 31.10.2012 and allowed the appeal filed by the Department. However, in the instant case, I am deviating fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority has to compare the original copy of the ARE-1 with the duplicate copy of the ARE-1 duly endorsed by the Customs Officer at the Port of Export with the triplicate copy of the ARE-1 received from the concerned Range Superintendent to satisfy himself about the export of the duty paid goods as prescribed under Notification No. 19/04-CE(NT) dated 6.09.04. The purpose of the endorsement on the triplicate copy of the ARE-1 by the Superintendent Range is to ensure that the proper duty has been paid by the manufacture at the time of clearance of goods from the factory/warehouse In the instant case, the applicant manufacture/and merchant exporter exported the goods under self -sealing, ,They did not submit the triplicate copy of the ARE-1 to the concerned Range Superintendent, but these were enclosed with the rebate claims. Now, the applicant has submitted a certificates issued by the Superintendent Central Excise, Range Jalna certifying the given details of duty payment certificate alongwith basis of co-relating the goods exported with the goods cleared from factory which reads as under TO WHOM SO EVER IT MAY CONCERN This is to be certified that the Goods Exported aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 which is the governing Rule for sanction of the rebate claim. The Notification No 32/2008 has been issued under Rule 18 of the Central Excise rules, 2002 under which rebate duty can be allowed subject to Condition mentioned therein So the stand of the department that no rebate can be allowed under rule 14 of the Central Excise Rules, 2002 does not sustain 13. Regarding the department objections that the goods exported are not core/atable with the goods cared from the factory of manufacture, Government observes that the goods were cleared from the premises of the merchant exporter under self-sealing. They did not get the goods examined by the Central Excise Officer as prescribed under CBEC circular No. 294/10-97-CX dated 30.01.1997 In this case the condition of exporting the goods from the factory of manufacture or warehouse is not fulfilled. So it is to be examined whether the exported goods are corelatable with the goods cleared from the factory of manufacture. In the instant case, on perusal of various documents submitted by the appi/cant such as ARE-Is, Shipping Bills, invoices, Bill of Lading etc., Government observes that the description of goods (pan masa/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has certified that goods cleared under the relevant ARE-Is were cleared from the factory of manufacture on payment of duty. 16. In view of the above discussions and findings, Government observes that the applicant has been able to prove the export of the duty paid goods by way of various documents duly endorsed by the Customs Officers and Certificate of Central Excise Range Superintendent certifying the duty paid nature of the exported goods. Moreover, the exported goods are co-relatable with the goods cleared from the factory of manufacture as the ARE Is, Shipping Bill, Invoice and Pan Masala Pouches/packages bear the Mark Nos/Batch Nos. of the goods The ratio of the GOI Order No. 54 to 60/09 dated 5.02. 09 in the case of M/s Gujarat Trading Co., Rajkot vs. CCE Rajkot is squarely applicable in this case wherein it has been held that where the exported goods are corelatable with the goods cleared from the factory of manufacture or warehouse, the Procedure prescribed for merchant exporter exporting the goods from a place other than factory of manufacturer or warehouse by the CBEC's Circular 294/10/97-CX dated 30.01.1997 can be relaxed and the rebate is admissible for merchant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Government finds that in shipping bill No.8743902 dated 2.5.2012, there is cross reference at ARE-1 No.01 dated 3.5.12 and ARE-1 No.02 dated 3.5.12 and vice-versa. The above mentioned ARE-1's find mention of relevant duty paying invoice No.2065 dated 29.3.12 and 2073 dated. 30.3.12 issued by M/s R.A. Kalitha Ship Breaking Pvt. Ltd., Bhavnagar. Further, description, weight and quantities exactly tally with regard to description mentioned in respective ARE-1s and other export documents including shipping bill and export invoices. Since, exported products i.e. the scraps of propeller are less in quantity and each quantity is very high in weight ranging from 500 kgs-5000 kgs, such tallying of marking cannot be brushed aside. As such there are sufficient corroboratory evidences that goods covered vide impugned excise documents have actually been exported vide impugned export documents. Further, endorsements of customs officers at the port of export, on part B of said ARE-1s also conclusive support the same observation. In shipping bill No.9766161 dated 9.7.12 there is cross reference at ARE-1 No.16 dated 9.7.12 and vice-a-versa. The above mentioned -ARE-I find mention of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voided so that it may not take away with one hand what the policy gives with the other. In the Union of India Vs. A V Narasimhalu 1983 ELT 1534 (SC), the Apex Court also observed that the administrative authorities should instead of relying on technicalities, act in a manner consistent with the broader concept of justice. Similar observation was made by the Apex Court in the Formica India Vs. Collector of Central Excise 1995 (77) ELT 51(SC) in observing that once a view is taken that the party would have been entitled to the benefit of the notification had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so, had elapsed. While drawing a distinction between 'a procedural condition of a technical nature and a substantive condition in interpreting statute similar view was also propounded by the Apex Court in Mangalore Chemicals and Fertilizers Ltd. Vs. Dy. Commissioner 1991 (51) ELT 437 (SC). In fact, as regards rebate specifically, it is now a title law that the procedural infraction of Notifications, circulars, etc. are to, be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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