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TMI Blog2014 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... cise (Appeals) Mumbai Zone-I. The Commissioner of Central Excise (Appeals) was dealing with four orders-in-original, three orders passed by the Assistant Commissioner of Central Excise, Bhayandar, Division Thane-II and another by a distinct Assistant Commissioner. 2. The case of the present petitioner was that their goods are exempted. The petitioners were issued show cause notices demanding duty in respect of the export consignment cleared for which proof of exemption was not allegedly submitted in time. The other allegation is that in one of the cases excisable goods were removed without payment of duty under cover of invalid letter of undertaking (LUT). The original authority consequently confirmed the demand of duty by orders refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone constitute the proof. When there is proof of exports in the form of contemporaneous documents, then, non-production of ARE-1's should not result in the petitioners being called upon to pay duty and equally penalty. There is nothing fallacious or erroneous much less lacking in bona fides, because a exporter is not producing the ARE. 6. Mr. Shah would rely upon the orders passed by the department itself and in original jurisdiction which have been noted by the Division Bench of this Court in the case of UM Cables v. Union of India reported in 2013 (293) E.L.T. 641 (Bom.). 7. Mr. Jetley on the other hand submitted that there are concurrent findings of facts and they cannot be re-appreciated and re-appraised in writ jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revisional jurisdiction has referred to the documents. The point for consideration is summarized in para 7.1 at page 71A of the Paper book. The observations are that in three cases the original authority confirmed the demand on the ground that the petitioner failed to produce original and duplicate copies of AREs-1 duly endorsed by the customs as a proof of export. 11. While setting out this allegation in the show cause notice, the revisional authority on its own referred to the documents submitted vide letters dated 4-1-2005 and 6-1-2005. It is clear from the order that the commercial invoice, copy of Bill of Lading, copy of shipping Bill and triplicate copy of ARE-1, duplicate copy of AR-1 and such documents are on record of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the record that the second claim dated 20 March, 2009 in the amount of Rs. 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 Rs. 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 form. For the reasons that we have indicated earlier, we hold that the mere non-production of the ARE-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Attachments (P) Ltd. v. Commissioner of Central Excise - 2007 (217) E.L.T. 264 and Commissioner of Central Excise v. TISCO - 2003 (156) E.L.T. 777. 17. We may only note that in the present case the petitioner has inter alia relied upon the bills of lading, banker's certificate in regard to the inward remittance of export proceeds and the certification by the customs authorities on the triplicate copy of the ARE-1 form. We direct that the rebate sanctioning authority shall reconsider the claim for rebate on the basis of the documents which have been submitted by the petitioner. We clarify that we have not dealt with the authenticity or the sufficiency of the documents on the basis of which the claim for rebate has been filed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined and the order suffers from a patent error. It is also suffering from clear perversity and in not referring to the contents of the documents which are forming part of the two letters. If the two letters which are referred to at para 7.1 they point towards Bill of Lading and equally the commercial invoice, shipping bill. Mr. Shah would urge that the confirmation of payment by buyers is on record. Then, the Revisional authority should have expressed an opinion thereon and whether that has any impact on the claim made by the Department. That having not done, the Revisional authority failed to exercise its jurisdiction vested in it in law. The Revisional order deserves to be quashed and set aside. 14. As a result of the above discu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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