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TMI Blog2015 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... X - Dated:- 17-2-2014 - Shri D.P. Singh, Joint Secretary Shri S.S. Arora, Advocate, for the Assessee. ORDER These revision applications are filed by M/s. Polyplex Corporation Ltd., Bannakhera Road, Bazpur, Distt. Udham Singh Nagar, Uttrakhand against the Orders-in-Appeal No. 78 to 80/CE/MRT-II/2012, dated 30-3-2012 passed by Commissioner of Central Excise (Appeals) Meerut-II with respect to Orders-in-Original No. 417 to 419/2011, all dated 17-12-2011 passed by Assistant Commissioner of Cental Excise, Division Haldwani. 2. Brief facts of the case are that the applicants are engaged in the manufacture of Biaxially Oriented Propylene Film BOPP film (plain), Biaxially oriented polyester film (plain), metal used Biazially oriented polyester Film Polyester Chips falling under Ch. 39. They are availing area based exemption under Notification No. 50/2003-C.E., dated 10-6-2003 and input stage rebate under Rule 18 of Central Excise Rules, 2002 in respect of Central Excise duty paid on goods used in manufacture of goods exported outside India. The applicants filed three rebate claims dated 5-8-2011/8-8-2011 along with the original/duplicate copies of the ARE-2s, concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The impugned order passed by the Commissioner (Appeals) ignoring the documents submitted by the applicant is bad in law and the same is not sustainable under law. 4.4 That it is a settled law that the substantial benefit in the form of rebate or refund of duty or exemption of duty is not deniable on the ground of clerical or procedural lapses on the part of the assessee. The Hon ble Supreme Court in the case of CST, UP v. Auriya Chamber of Commerce, Allahabad [1986 (25) E.L.T. 867 (S.C.)] that rules or procedures are handmade of justice, not its mistress . Further the Apex Court has once again emphasized upon the need to ignore procedural lapses while considering substantive benefit otherwise available to the assessee. In the case of Mangalore Chemicals Fertilizers Ltd. v. Dy. Commissioner [1991 (55) E.L.T. 437 (S.C.)], the Hon ble Supreme Court held that a distinction should be made between a procedural condition of technical nature and a substantive condition. The Apex Court held that non-observance of procedural condition is condonable while that of substantive condition is not. 4.5 That in view of the above grounds, they requested to (a) set aside the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Invoice, bill of lading and shipping bill sufficient even in absence of original ARE-4 form - Absence of allegation that export not taken place - Duty demand not sustainable - Section 11A of Central Excise Act, 1944. 5.4 Applicant further stated in the said letter that case may be decided on merits without personal hearing in these cases. 6. Government has carefully gone through the relevant case records, oral written submissions and perused the impugned Orders-in-Original and Orders-in-Appeal. 7. On perusal of records, Government observes that in these cases, part input rebate claims of ₹ 1,34,859/-, 1,65,501/- and 1,94,435/- were rejected by the adjudicating authority on the grounds instead of original copies of ARE-2 No. 205 dated 12-6-2011, 215, dated 18-6-2011 and 26, dated 7-4-2011 only the photocopies of said ARE-2 were filed. Commissioner (Appeals) upheld the said order and now applicant has filed these revision applications against impugned Orders-in-Appeal on the grounds stated above. 8. Government notes that applicant had been claiming right from beginning that said original and duplicate ARE-2 forms duly endorsed by Customs were submitted along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be raised to the level of a mandatory requirement. Rule 18 itself makes a distinction between conditions 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 Commissioner [1991 (55) E.L.T. 437 (S.C.) = (2002-TIOL-234=SC-CX]. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The primary requirement of the identity of the goods exported was therefore, in our view, not fulfilled. In such a case, it cannot be said that a fundamental requirement regarding the export of the goods and of the duty paid character of the goods was satisfied. 16. However, it is evident from the record that the second claim dated 20 March, 2009 in the amount of ₹ 2.45 lacs which forms the subject matter of the first writ petition and the three claims dated 20 March, 2009 in the total amount of ₹ 42.97 lacs which form the subject matter of the second writ petition were rejected only on the ground that the Petitioner had not produced the original and the duplicate copy of the ARE-1 form. For the reasons that we have indicated earlier, we hold that the mere non-production of the ARE-t form would not ipso facto result in the Invalidation of the rebate claim. In such a case, It is open to the exporter to demonstrate by the production of cogent evidence to the satisfaction of the rebate sanctioning authority that the requirements of Rule 18 of the Central Excise Rules, 2002 read together with the notification dated 6 September, 2004 have been fulfilled. As we have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-production of the original and the duplicate copies of the ARE-1 forms, if it is otherwise satisfied that the conditions for the grant of rebate have been fulfilled. For the aforesaid reasons, we allow the petitions by quashing and setting aside the impugned order of the revisional authority dated 22 May, 2012 and remand the proceedings back to the adjudicating authority for a fresh consideration. The rejection of the rebate claim dated 8 April, 2009 in the first writ petition is, however, for the reasons indicated earlier confirmed. Rule is made absolute in the aforesaid terms. 9.1 The ratio of said judgment is squarely applicable to this case. The rebate claim was otherwise found admissible except the deficiency of non-availability of original ARE-2 form. In view of position explained above, the instant rebate claims are admissible to the applicants as the use of duty inputs in the manufacture of goods exported is not in dispute and export of goods stands established from customs certified relevant duplicate ARE-2 as well as shipping bills. The original authority is directed to sanction the rebate claims if claims are otherwise found in order. The impugned orders are modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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