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TMI Blog2010 (8) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Balani For The Respondent : Mr. P.S. Jetly JUDGMENT : By this Petition, the Petitioners have prayed for setting aside the Order dated 29th May 2006 passed by the Respondent No.2 in Revision under Section 35EE of the Central Excise Act, 1944. The said Revision was preferred against the Order allowing the Appeal filed by the Deputy Commissioner of Central Excise and Customs (Respondent No.3) and consequently, rejecting the Petitioners' rebate claim for ₹ 9,87,777/-. FACTS :- 2. The Petitioner No.1 is a partnership firm of which the Petitioner No.2 is the partner. The Petitioners (dealer) are engaged in the business of trading in ferrous/ non-ferrous metals. The Petitioners had purchased SS Sheets in Coil Form (Hot Rolled) (200) SC-1 Grade, of various thickness (the said goods) involving 162.405 MTs under 11 invoices (Exhibits- B-1 to B-11 of the Petition) from M/s. Shah Alloys Limited (the manufacturer). The Petitioners thereafter under 7 invoices (Exhibits- C-1 to C-7 of the Petition) sold 151.500 MTs of the said goods to M/s. H.M. Traders, Mumbai (the exporter). The exporter exported the said 151.500 MTs of the said goods under 3 ARE-1s issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.2) vide its impugned order dated 29th May 2006, set aside the Order dated 22nd December 2004 of the Commissioner of Central Excise (Appeals). As a result, the rebate claims stood rejected. The Revisional Authority after comparing the contents of the invoices of M/s. Shah Alloys Limited (manufactuer) with two of the 7 invoices of the Petitioners has held that the description and the quantity of the goods cleared from the manufacturing place is different from the description and the quantity of the goods given in the dealer's invoice. There is no identification mark/numbers on the goods which can prove that the Respondents have exported the same goods which were cleared from the manufacturer's place on payment of central excise duty. It was also held that the Respondents have not exported goods after payment of central excise duty directly from the place of the manufacturer. It was held that the Respondents have, therefore, not complied with the conditions for claiming rebate as contained in Rule 18 of the Central Excise Rules, 2002 and the notifications issued thereunder. The Revisional Authority also relied on the observation of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the findings of the Original Authority in paragraph 5(b) of the Order that the Petitioners vide their letter dated 8th July 2004 enclosed transporters documents showing the evidence of transfer of the goods. 13. It is submitted that the proforma of the ARE 1 does not provide for name of the registered dealer. Hence, in column 1 of the ARE 1 the name of the registered dealer (the Petitioners) is indicated. 14. It is submitted that the Respondent No.2 failed to appreciate that the Petitioners have successfully established the exact co-relation between the goods which were manufactured and cleared on payment of central excise duty and the goods which were exported. The Respondents failed to appreciate that the core aspect or fundamental requirement for rebate is manufacture and subsequent export of the goods. As long as this requirement is met, other procedural deviations can be condoned. The procedure has been prescribed to facilitate verification of substantive requirements. As per the law laid down by the Hon'ble Supreme Court, substantive benefit cannot be denied for procedural lapses. Procedural infractions are to be condoned if exports have actually taken p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s originally cleared from the factory of the manufacturer. Since there is no identifiable marking/ dimension appearing in the export documents, no co-relation could be made with the goods exported. It is submitted that the Petitioners have mis-declared themselves as manufacturer on the body of the subject ARE 1. The Petitioners had also not followed the procedure prescribed under CBEC Circular No. 18/92-CX-6, dated 18th December 1992 read with Circular No. 294/10/1997-CX, dated 30th January 1997. It is submitted that the decision of the Hon'ble Supreme Court in Indian Aluminium Company Limited (supra), is squarely applicable to the present case. It is, therefore, submitted that rule be discharged and the Petition be dismissed. CONCLUSION :- 20. We have considered the submissions advanced on behalf of the Petitioners as well as the Respondents. We have perused the impugned Order passed by the the Respondent No.2. We have also perused the case law cited by the Petitioners as well as the Respondents. 21. The Petitioners have purchased 11 consignments of Stainless Steel Sheets and Coils (Hot Rolled) totaling to 162.405 MTs from M/s. Shah Alloys Limited (manufacturer). A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited along with the invoice number under which M/s. Shah Alloys Limited sold the goods to the Petitioners and the description of the goods sold by them in the abbreviated form, is mentioned in all the 7 invoices raised by the Petitioners in favour of M/s. H.M. Traders (the exporter). Again in the AREs, the description of the goods is shown as 'Stainless Steel Coils' HR (i.e. Hot Rolled). The invoice numbers of the seven invoices raised by the Petitioners on the exporter giving all particulars of the manufacturer, are also set out in the AREs. In column no.1 pertaining to the particulars of the manufacturer of goods in the AREs, though the name of the Petitioner No.1 is shown, in column no. 5 the Petitioner No.1 is shown as the dealer. The Central Excise Officer has also certified that the goods set out in Form-ARE 1 have been exported. 23. We, therefore, hold that the aforestated particulars set out in the documents produced by the Petitioners, establishes beyond any doubt that the goods purchased by the Petitioners from the manufacturer are the goods sold by the Petitioners to the exporter and the same have been exported by the said exporter. The Respondent No.2 has, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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