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TMI Blog2011 (9) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) on the main ground that :- (a) Manufacture-exporter failed to remove the goods either under sealing by Central Excise Officer or under self sealing/self certification and as such violated the provision of Rule 3(a)(i) (ii) of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. (b) The Applicant failed to submit triplicate copies of ARE-1 to the jurisdictional Central Excise Officer to verify identity of exported goods and particulars of duty payment and as such, violate the provisions of para 3(b)(ii) of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Commissioner (Appeals) after considering all the submissions allowed the department s appeal and set aside the impugned Orders-in-Original. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 They have complied with the conditions and limitations as prescribed in the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. It is the conditions and limitations which determine the entitlement of the exporter to rebate claim. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions is to be avoided so that it may not take away with one hand what the policy gives with the other. 4.6 The essential condition of allowing rebate as per Rule 18 of the Central Excise Rules, 2002 is that goods are to be exported and those goods should be duty paid. Thus we fall in the ambit of the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Goods have been exported by following the conditions specified in the notification. As per 5.2 of Chapter 8 of C.B.E. C. Manual, it has been clearly spelled out that one can export from a place other than factory or warehouse (including diversion of duty paid goods for exports). Therefore it is not binding and compulsory for an exporter to export the goods as laid down in para 3 of the said chapter. In this respect also para 7 of the Chapter 8 of C.B.E. C. Manual is worth mentioning. The Commissioner (Appeals) is wrong in saying that we have not submitted duplicate copies of the ARE-1 to the range office. The Assistant Commissioner in his Orders-in-Original has very specifically mentioned that we have submitted the duplicate copy of the ARE-1 to the range and also detailed about the range officials verification of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made and justified. 5. The personal hearing was scheduled in this case on 22-6-2011, 26-7-2011 and 23-8-2011, was attended by Shri C. Hari Shankar, advocate on behalf of the applicant who mainly reiterated the grounds of Revision Application. Nobody attended the said three hearings on behalf of the Respondent-Department. 6. Government has carefully gone through the relevant case records and perused impugned Order-in-Original and Order-in-Appeal. 7. Government observes that the applicant, a manufacturer exporter, exported the goods directly from their factory/warehouse. The goods were cleared in loose condition, subsequently stuffed into the containers in ICD Tuglakabad. The custom authorities examined the goods and endorsed the copies of AREs-1 certifying that the goods covered vide said AREs-1 were exported vide relevant Shipping Bills. Subsequently, the applicant filed rebate claims with the Original Authority, who sanctioned the said claims. Being aggrieved by the orders of Original Authority, the respondent department filed appeals before Commissioner (Appeals), who allowed the appeals in the favour of department. Commissioner (Appeals) had held that the applicant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards procedural infractions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 on the part of applicant. Further, Government observes that the applicant had submitted a detailed chart demonstrating details of movement of excisable goods and correlation thereof with export documents. Copies of CRN Slips issued by Container Corporation of India shows details of Truck No., Container No., Shipping Bill No. and description of goods. All such Truck Nos. found mention in copies of consignment notes issued by the transporter. Such consignment notes contains details such as excise invoice No., quantity/weight at the goods, value of the goods etc. The applicant has also submitted copies of staffing tally sheet issued by B. Ghose Company Pvt. Ltd. The details of weight, of Shipping Bill No. and description, container no. also tallying with CRN slip of Container Corporation of India and also with details mentioned in export documents. Harmonious perusal of CRN Slips, consignment notes, relevant AREs-1/invoices and export documents conclusively prove that goods cleared from factory under relevant AREs-1 invoices, were actually exported. Government also notes that there is no allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng statute similar view was also propounded by the Apex Court in Mangalore Chemicals and Fertilizers Ltd. v. Dy. Commissioner - 1991 (55) E.L.T. 437 (S.C.). In fact, as regards rebate specifically, it is now a settled law that the procedural infraction of Notifications, circulars, etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirement. The core aspect or fundamental requirement for rebate is its manufacture and subsequent export. As long as this requirement is met other procedural deviations can be condoned. This view of condoning procedural infractions in favour of actual export having been established has been taken by Tribunal/Govt. of India in a catena of orders, including Birla VXL Ltd. - 1998 (99) E.L.T. 387 (Trib.), Alfa Garments - 1996 (86) E.L.T. 600 (Tri.), T.I. Cycles - 1993 (6) E.L.T. 497 (Trib.), Atma Tube Products - 1998 (103) E.L.T. 270 (Trib.), Creative Mobus - 2003 (58) RLT 111 (G.O.I.), Ikea Trading India Ltd. - 2003 (157) E.L.T. 359 (G.O.I.) and Cotfab case - 2005 (205) E.L.T. 1027 (G. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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