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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 ..... rd or no proof of any export. The approach of the revisional authority therefore, is not in conformity with law as laid down in UM Cables Limited v. Union of India [2013 (5) TMI 459 - BOMBAY HIGH COURT]. In the present case, the fundamental issue has not been examined 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 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. - Decided in favour of petitioner by restoring revision application - Writ Petition No. 152 of 2014 - - - Dated:- 3-3-2014 - S.C. Dharmadhikari and G.S. Kulkarni, JJ. Shri Prakash Shah i/b Jas Sanghvi i/b PDS Legal, for the Petitioner. Shri Pradee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show cause notice. Mr. Shah would submit that one can understand the insistence on production of proof of exports. However, one cannot understand insistence of production of certain documents alone as holding that they alone 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 jurisdiction. The authorities have concurrently held that non-production of such primary documents as ARE are not minor or technical lapses but one of substance and the finding therefore, does not require interference and particularly in gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce these documents. 12. We see much substance in the argument of the learned counsel that insistence on the proof of exports is understood. However, the insistence on production of ARE s and terming it as a primary one has not been supported in law. Mr. Shah is therefore justified in criticizing the revisional authority on the ground that the authority was oblivious of execution of other documents and particularly in respect of the clearance of goods under bond/LUT. If there is adequate proof of exports then, non-production of ARE-1 would not result in the allegations being proved and the demand being confirmed. There is no question of penalty being imposed in such a case as well and without verification of the records. The penalty could have been imposed had there been absolutely no record or no proof of any export. The approach of the revisional authority therefore, is not in conformity with law as laid down in UM Cables Limited v. Union of India. In referring to a identical issue, the Division Bench in UM Cables Limited observed as under : 16. However, it is evident from the record that the second claim dated 20 March, 2009 in the amount of ₹ 2.45 lacs which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adjudicating authority shall reconsider reconsider the claim on the basis of those documents after satisfying itself in regard to the authenticity of those documents. However the rebate sanctioning authority shall not upon remand reject the claim on the ground of the non-production of the original and the duplicate copies of the ARE-1 forms, if it is otherwise satisfied that the conditions for the grant of rebate have been fulfilled. For the aforesaid reasons, we allow the petitions by quashing and setting aside the impugned order of the revisional authority dated 22 May, 2012 and remand the proceedings back to the adjudicating authority for a fresh consideration. The rejection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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