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TMI Blog2015 (12) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by M/s. KEC International Ltd., Mysore against the Order-in-Appeal No. 215/12, dated 7-5-2012 passed by the Commissioner of Central Excise (Appeals), Mangalore with respect to Order-in-Original No. 10R/2011, dated 19-5-2011 passed by the Assistant Commissioner of Central Excise, Mysore-II Division, Mysore. 2. Brief facts of the case are that the applicants are the holders of Central Excise Registration Certificate No. AACCK5599HEM005 for manufacture of excisable goods falling under Chapter 85 of the CETA, 1985 and are availing Cenvat credit facility under the Cenvat Credit Rules, 2004. The applicants had filed rebate claim on 22-2-2011 for ₹ 43,47,034/-. In this regard, a show cause notice was issued on 18-5-2011 as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the second copy having a proper endorsement is furnished, which is not accepted by the Commissioner (Appeals). 4.3 The applicant submits that the mistake is committed by the exporter of not mentioning the ARE-1, since it has come to the knowledge only on receipt the document after the export, it cannot be corrected and hence, the denial of genuine refund claim is not tenable under Law. 4.4 The applicant submits that in the case of Union of India v. Bharath Aluminium Co. Ltd., reported in 2011 (263) E.L.T. 48, the Hon ble High Court had held that Non observance of technical nature is condonable, whereas non observance of substantive condition would disentitle the assessee any exemption and refund. 4.5 The applicant submits that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the goods are exported. 5.6 The applicant submits that since they have established the correlation of the goods exported with the quantity exported by the Siemens India Ltd., the disallowance is undue hardship and should be condoned for the non-mention of the ARE-1 No. in the shipping bill as a procedure lapse. 5.7 The applicant submits that it is also not disputed that the duty is not paid on the goods exported. 5.8 The applicant submits that the order is revenue biased and liable for setting aside in the interest of equity and justice. 6. Government has carefully gone through the relevant case records and perused the Order-in-Original Order-in-Appeal. 7. On perusal of records, Government observes that out of total r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is mentioned as M/s. RPG Cable Ltd. whose name is reportedly now changed as M/s. KEC International. The goods were cleared to M/s. Siemens Ltd. Plot No. 2, Sector No. 2 Kharghar Navi Mumbai who in turn exported the goods from their premises at Navi Mumbai. There are no marks and number mentioned in the ARE-1. 9. From the above, Government notes that in this case, goods are not exported direct from factory of manufacture as required under Condition 2(a) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. C.B.E. C. vide Circular No. 294/10/97-CX, dated 30-1-1997 has relaxed the condition of direct export of goods from factory of manufacturer subject to the condition that procedure prescribed in the said circular is followed. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it cannot be established that the goods cleared from the factory of manufacture have actually been exported. Further triplicate copy of the ARE-1 was also not submitted on which payment of duty is verified. The case law cited by applicant cannot be applied to the case as the substantial conditions of export of duty paid goods are not complied with in this case. 11. In view of above position, the export of duty paid excisable goods cleared from factory cannot be established and the lower authorities have rightly concluded that export of duty paid goods is not established in this case. As such, the rebate claim is not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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