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TMI Blog2015 (3) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... y held that goods were directed exported from factory. There is no dispute that duty was not paid on said exported goods. The customs endorsement on the original and duplicate copy of ARE-1 confirming export of said goods is not challenged by department. The applicant department has not bothered to send any reply till date even after lapse of a period more than one month. In this case, the respondent has contended that fuel tank capacities of Vessels MT Neverland and MT Maersk Progress were 2938 MT and 3475 Mt whereas quantities of FO supplied were only 370.08 MTs and 390.01 MTs: respectively. There is no reason to doubt the reasonableness of this quantity of fuel supplied to vessels. As such there is no merit in this objection of department. Regarding payment of interest for delayed payment of rebate claim Government notes that respondent though filed claim within one year but the complete claim alongwith requisite document as pointed out in deficiency memo were filed only on 18.4.11. So the interest is admissible only after a period of 3 months1rom the said date of 18.4.11. As per section 11BB the interest liability will arise only when the rebate claim complete in all resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturer/exporter. The said notification stipulates conditions/limitations as well as prescribes procedures to be followed, while claiming rebate of duty on export of goods. The condition stipulated at para 2(c) of the Notification No. 19/2004-CE/(NT) dated 06.09.2004 read as under:- 2 (c) that the excisable goods supplied as ships stores for consumption on board a vessel bound for any foreign port are in such quantities as the Commissioner of Customs at the port of shipment may consider reasonable . The adjudicating authority vide letters dated 18.02.2010 asked the said exporter to submit the quantification certificates issued by the Commissioner of Customs at the port of shipment. However, the said exporter ignored the condition stipulated in the said notification and instead contended that CBEC's Excise Manual of Supplementary Instruction did not list any such certificate. As can be seen, the said exporter had not fulfilled vital condition stipulated in Notification No. 19/2004-CE/(NT) dated 06.09.2004. it appears that the appellate authority has overlooked the fact that the said exporter has, apart from non fulfilling procedural requirement, also not fulfilled essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order dated 21.07.2011 of the Hon'ble High Court setting aside the order No. 1743/10-CX dated 03.12.2010 passed by the Revisionary Authority in the case of Shakti Shipping International, and has preferred SLP before the Hon'ble Supreme Court, which is pending decision. Hence, it appears that the issue is not finally settled. 4.5 It appears that the appellate authority has also erred in granting interest on delayed payment of rebate under section 11BB of the-,Central Excise Act, 1944, from the date of receipt of rebate, application., It appears that the appellate authority has failed to observe that all the three; rebate claims filed by the said exporter on 16.12.2009, were not complete in all respect and the same were returned to them immediately along with deficiency memo. The said exporters re-submitted the rebate claims only on 18.04.2011. Even the resubmitted rebate claims were not found complete by the adjudicating authority and the same were rejected vide Orders-in-Original dated 06.07.2011. Since the rebate claims were not sunctionable as held by the adjudicating authority as well as reasoned above, there is no question of granting interest to the said cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fuel Tank capacities of the vessels. For instance the Fuel tank capacities of MT Neverland and MT Maersk Progress were 3029 KL (Approx 2938 MTs) and 3583 KL (Approx 3475 MTs) whereas the quantities of the FO supplied was 370.08 MTs 390.01 MTs respectively. The Chartering Questionnaire 88 (Q88) of these ships are enclosed where all details including Capacities of bunker tanks are mentioned. 5.2 As per the procedure prescribed under Notification No. 19/2004 CE (NT) dated 06.09.2004 a manufacturer exporter registered under the Central Excise Rules, 2002 and merchant exporters who procure and export goods directly from the factory or warehouse can exercise the option of exporting the goods sealed at the place of dispatch by a central excise officer or under self sealing. 5.3 It is well established from the documents submitted like each invoice issued by manufacturer bearing the tanker number and seal number that the goods have moved directly from the refinery / factory of the manufacturer in duly sealed tankers to the port of export, Lorry receipts are already available on record. The said material is procured from Essar Oil Limited, leading Oil Refining Marketing Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim was filed on 18.4.11 yet Commissioner (Appeals) allowed payment of interest the from the date of expiry of 3 months after filing the initial rebate application. 10. The respondents have contended that it was factually incorrect on the part of applicant department to state that the goods were not directly exported from manufacturer premises; the goods were procured from M/s Essar Oil Limited and exported in tankers against ARE-1 and Invoices, bearing tanker No. and seal number and exported directly from factory; that lorry receipts clearly show that goods were taken directly from manufacturer premises to the port of export; that the endorsement of custom officer on ARE-1 prove that goods cleared from manufacture premises were ultimately exported. 10.1 On perusal of sample excise documents ARE-1, and Excise Invoices, it is noticed that in ARE-1 the destination is mentioned as name of vessel and there is a mention of relevant invoices. Further, in relevant invoices, there is mention of Vessel name, to whom the goods were supplied. They have also submitted copies of, lorry receipts [as evident from impugned Order-in-Original] to show that the goods were directly supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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