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TMI Blog2011 (7) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... ircles 1,84,633/- 2/26-4-2008 Aluminium Circles 2,19,175/- 3/2-6-2008 Aluminium Circles 1,17,775/- Lower authority has observed that the input description at table 2 of ARE-2s regarding duty paid excisable materials and packing materials used in manufacture of export goods was shown as Aluminium circles, whereas as per formula approved by the Assistant Commissioner it was an Aluminium sheet. Thus it was felt that the applicant had not procured the declared inputs for use in the manufacture of their finished excisable goods and therefore, rebate was not admissible. Therefore a show cause notice dated 26-5-2009, was issued and adjudicated by the lower authority vide impugned order, wherein the rebate claims were rejected. 3. Being aggrieved by the said Order-in-Original, the respondent filed appeal before Commissioner (Appeals) who allowed the same thereby setting aside the impugned Order-in-Original and allowing the claimed benefits. 4. Being aggrieved by the said impugned order-in-appeal, the applicant, department has filed this revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the assessee had filed the declaration as required under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, as amended, for Aluminium sheets for which the input-output ratio was approved by the Assistant Commissioner, Central Excise, Division-II, Ahmedabad-I, vide letter F.No. IV/16-51/PERM/06-07, dated 7-7-2006. However, the assessee did not use Aluminium sheets, instead, had used Aluminium Circles, for which neither any declaration was filed nor any permission was taken by the assessee. As the assessee has not complied with the conditions of the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, the rebate under Rule 18 of the Central Excise Rules, 2002, is not admissible. The impugned Order-in-Appeal is thus, legally not tenable and is required to be quashed and set aside. 4.3 The said Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, further provides that the manufacturer or processor shall obtain the materials to be utilized in the manufacture of finished goods intended for exports directly from the registered factory in which such goods are produced, accompanied by an invoice issued under Rule 11 of the Central Excise Rules, 2002. There is no e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in case where the assessee is taking benefit under Rule 18. Since the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 is itself a procedural Notification, the appellate authority is very much empowered to grant the rebate by exercising his jurisdiction to condone procedural lapse. The respondent rely upon following judgment in support of their contention :- (i) Collector of Central Excise v. T.I. Cycles of India - 1993 (66) E.L.T. 497 (Tri.) (ii) Commissioner of Central Excise, Calicut v. Ambadi Enterprises Ltd. - 2007 (219) E.L.T. 917 (Tri.-Bang.). 5.3 Further the ground taken by the applicant for setting aside the order of the Commissioner (Appeals) was that on the basis of judgment of Hon ble Tribunal in case of Mahindra Mahindra Ltd. v. Commissioner reported in 2007 (219) E.L.T. 361 (Tri.-Mumbai) is totally misconceived and wrongly interpreted by the applicant as in the said judgment it was held by the Hon ble Tribunal in para 5 that M/s. Mahindra Mahindra Ltd., have availed the benefit under Notification 6/2000 and have not complied with the condition mentioned therein. Therefore, once they have availed the benefit under the notification they are bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.7 The respondent further submits that the procedure for filing declaration in terms of Notification No. 21/2004-C.E. (N.T.) has been enforced for the satisfaction of jurisdictional Assistant Commissioner/Deputy Commissioner that there is no likelihood of evasion of duty, which is evident from the condition No. (2) of the said Notification. The respondent at the time of filing the application for the claim of rebate had enclosed all the following documents essential for verification of the claim. (i) Export Invoice (ii) Bill of Lading (iii) Shipping Bills (iv) Purchase Invoice (v) Worksheet for rebate. 5.8 In addition all the original copies of the documents including the purchase invoices were produced to the jurisdictional Range Officer for the verification of the rebate claim in question. Hence, the allegation that the copies of invoices issued under Rule 11 in respect of inputs used in export goods, were not produced does not convey the truth. Further case laws relied upon :- (i) Kansal Knitwears v. C.C.E., Chandigarh - 2001 (136) E.L.T. 467 (Tri.-Del.) (ii) Alpha Garments v. Collector of Central Excise, New Delhi - 1996 (86) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACCE for input Aluminium Sheets. Instead the Aluminium Circles were used in the manufacture of exported goods. Since, the respondent has followed the laid down procedure except the lapse pointed out above the input-output ratio in respect of inputs. Aluminium Circles can be worked out now based as the relevant data. Moreover, the SION norms notified in terms of EXIM Policy also guide you about, input-output ratio of particular item. Rebate can be allowed in terms of SION Norms unless there are specific reasons for variation, as stated in para 3.2 of part V of Chapter 8 of C.B.E. C. Central Excise Manual on supplementary instructions. 10. Government further notes that as per condition No. 3 of the Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, the materials/inputs are to be procured directly from the registered factory in which such goods are produced and accompanied by invoice issued under Rule 11 of Central Excise Rules, 2002. The said condition also states that manufacture or processor may procure materials from dealers registered for the purpose of the Cenvat Credit Rules, 2002 under invoices issued by such dealers. In the instant case the Central Excise Invoices p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.). In fact, as regards rebate specifically, it is now a title 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 (Tri.), Alfa Garments - 1996 (86) E.L.T. 600 (Tri.), T.I. Cycles - 1993 (66) E.L.T. 497 (Tri.), Atma Tube Products - 1998 (103) E.L.T. 270 (Tri.), Creative Mobus - 2003 (58) RLT 111 (G.O.I.), Ikea Trading India Ltd. - 2003 (157) E.L.T. 359 (G.O.I.) and a host of other decisions on this issue. 13. In view of the principles laid down in abovesaid case laws, Government is of the considered opinion that total denial of claimed rebate in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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