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TMI Blog2015 (8) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... lapse should be considered as a procedural lapse of technical nature which is condonable in terms of case laws cited by applicant. Thus, the applicant is not entitled for benefit of provisions of Notification No. 21/2004-N.T., dated 6-9-2004, as they have failed to comply with the conditions appended to the said notification - Decided against the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... e export of the goods duly certified by the Customs Officer in lieu of the ARE-2 application. However, applicant was unable to produce such shipping bills also. (iii) that the submission of the ARE-2 is an original proof of the export duly certified by the Customs Officer and hence the same is a material requirement and cannot be attributed to the procedural lapse; that the applicant also failed to produce the original shipping bills for necessary verification with a view to meet the requirement of the ARE-2 applications; that the facility of "H" forms is available to the exempted and unregistered units which undertakes exports directly or through merchant exporter from their Units as per Chapter 7, Part-III Para 4 contained in Excise Manual (C.B.E. & C. Supplementary Instructions). Hence in the case of the applicant the said facility is not available to them. (iv) On the charge of time bar alleged in the impugned show cause notice the applicant did not raise any plea; that the charge levied in the show cause notice is correct. Consequently the claim of the applicant to the extent of ₹ 17,901/- is time-barred. (v) that in the case of CCE v. Indian Overseas Corporation - 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 264 (Tri. - Bang.) * Rajasthan Industries v. CCE, Jaipur - 2006 (73) RLT 240 = 2006 (196) E.L.T. 295 (T). 4.7 That though applicant have submitted the copy of export invoice, shipping bills and bill of lading, even otherwise the applicant has exported some of the consignment through merchant exporter. The said merchant exporter has provided to the applicant the form H of sales tax law. The said form 'H' is a proof for export of goods by the said merchant exporter. That it is the settled law that 'H' form of sales tax department issued by the merchant exporter can be accepted as proof of export. In this context reliance is placed on the following decisions :- * Kevin Engg. Pvt. Ltd. v. CCE, Ahmedabad - 2004 (166) E.L.T. 268 (Tri. - Mumbai) * Benara Bearings Pvt. Ltd. v. Collector of Central Excise, Kanpur-I - 1999 (105) E.L.T. 398 (Tribunal) * Vaishnow Shoes v. Commissioner of C. Ex., Kanpur - 1999 (106) E.L.T. 124 (Tribunal) * Vadapalani Press v. Commissioner of C. Ex., Chennai - 2007 (217) E.L.T. 248 (Tri. - Chennai). 4.8 That in above cases it is clearly held by the Hon'ble Tribunal that, if AR-4 procedure is not followed even. Hence, benefit of export is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.), held that Commissioner is empowered to allow rebate even if all or any of the conditions laid down in the notification including production of AR-4, not complied with. "Under the premises, applicant request to condone this procedural lapse which happened due to unawareness. The Hon'ble CEGAT in case of Shreeji Colour Chem. Industries v. Commissioner of C. Ex., Vadodara - 2009 (233) E.L.T. 367 (Tri. - Ahmd.), held that Export - Proof of export - Non-production of AR-4 form - Proof of export of goods by way of invoice, bill of lading and shipping bill sufficient even in absence of original AR-4 form - Absence of allegation that export not taken place - Duty demand not sustainable - Section 11A of Central Excise Act, 1944 [2003 (156) E.L.T. 777 (Tribunal) followed]." 4.13 Further in case of Collector of Central Excise, Chandigarh v. Kanwal Engineers - 1996 (87) E.L.T. 141 (Tribunal), it is held that, Refund of Modvat credit earned on inputs used in export goods - Documents as to proof of export - AR-4/AR-4A not produced - Necessary documents like GP2, shipping bill, bill of lading, invoices, bank certificates attached to the refund claim - Shipping bills can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- * Tablets India Ltd. - 2010 (259) E.L.T. 191 (Mad.) * CCE, Bhopal v. Siddharath Food Products * GOI Order No. 600/2005, dated 29-11-2005 [2006 (205) E.L.T. 1093 (G.O.I.). 4.17 Applicant further submits that it is the settled law that substantial benefit cannot be denied merely on the basis of procedural lapse. That in the case of Thermex Pvt. Ltd. v. CCE - 1992 (61) E.L.T. 352 (S.C.) - it has been held by the Hon'ble Supreme Court that any beneficial legislation is not to be denied merely for the sake of some procedural lapses. Similar view has been taken by the Tribunal in many cases while allowing benefit under various rules/notification. Few citations are as follows :- - Commissioner of Central Excise and Customs, Surat v. Shriram Refrigeration Industries - 1999 (112) E.L.T. 511 (T) - Lupin Laboratories Ltd. v. CCE, Bhopal - 1999 (113) E.L.T. 978 (T) - Jay Engg. Works Ltd. v. CCE, Calcutta-I - 2001 (137) E.L.T. 454 - Benara Bearings Pvt. Ltd. v. CCE, Kanpur-I - 1999 (105) E.L.T. 398 (Tribunal) - Associated Cement Cos. Ltd. v. CCE - 1999 (111) E.L.T. 257 - Lupin Laboratories v. CCE, Indore - 1994 (71) E.L.T. 278 (T) - Nagarjuna Agro Tech. Ltd. v. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in present case the export products is soya meal/DOC. The said products falls under Chapter Heading 2304 and is fully exempted from excise duty being NIL tariff. Therefore, applicant are the manufacturer of exempted products. Applicant submits that since their final products is exempted unconditionally they are hot required to follow the ARE-2 procedure. 5.2 That the C.B.E. & C. has clarified that in case of export of exempted products the procedure of ARE-2 is not required and in case of export through merchant exporter the sales tax form, i.e., "Form H" issued by the merchant exporter can be accepted as proof of export. That reliance is placed on Board Circular No. 648/39/2002-CX, dated 25-7-2002, F.No. 209/11A/2002-CX.6, wherein it is clarified in Para 2 that in the case of export by exempted units through merchant exporter, the documents prescribed by Sales Tax Department, viz H-Form/ST-XXII Form or any other equivalent Sales Tax form, will be accepted as proof of export. Also relied on following ruling : - Rajindra Forge (P) Ltd. v. CCE, 1999 (111) E.L.T. 744 - Benara Bearings Pvt. Ltd. v. CCE, Kanpur-I - 1999 (105) E.L.T. 398 (Tribunal). 5.3 In view of above c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) also rejected the appeal filed by the applicant. Now the applicant has filed this revision application on grounds mentioned in Paras 4 and 5 above. 8. Government notes that in the present case, it is an undisputed fact that the applicant, a unit registered with Central Excise, availed benefit of rebate under Rule 18 for inputs used in manufacture of goods for the purpose of export but failed to fulfill the conditions and did not follow the prescribed procedure. They did not comply with the provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 under Rule 18 ibid and failed to file ARE-2 with proper officer and also failed to submit proof of export of goods in question. 9. In reference to the above, Government first proceeds to examine the statutory position and the requirement of Form ARE-2. 9.1 Government notes that export of goods under claim for rebate on inputs used in manufacture of export goods is governed by Rule 18 of Central Excise Rules, 2002 and Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 read with Chapter 7 of C.B.E. & C.'s Central Excise Manual and finds that ARE-2 is the basic and essential document for exports as an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units, i.e., those units who are within exemption limit based on value of clearance and are not registered with Central Excise. The requirements include obtaining of declarant code no. in terms of Notification No. 36/2005-C.E. (N.T.), dated 14-11-2005, use of pre-authenticated invoices bearing printed serial number, declarant code no., progressive total of clearances, EXIM code, etc.; filling prescribed quarterly statement; submitting proof of export to Range Officer within six months from date of clearance from factory; proof of clearance in case of exports through merchant exporters including Form H in case of goods exported directly from the unit. 9.2 In light of the above stated statutory provision, Government observes that any export clearance, intended to be made for claiming import duty rebate, will be subject to Rule 18 ibid read with Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 in case of registered units and C.B.E. & C.'s Circular No. 648/39/2002, dated 25-7-2002 in case of declarant units. ARE-2 is the principle document under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 that establishes that the applicant has either followed the procedure for seali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notification has to be treated as a part of the statute and it should be read along with the Act as held in the case of Collector of Central Excise v. Parle Exports (P) Ltd. - 1988 (38) E.L.T. 741 (S.C.) and Orient Weaving Mills Pvt. Ltd. v. Union of India - 1978 (2) E.L.T. J311 (S.C.) (Constitution Bench). 9.3.4 Further, Government in its earlier Orders 774/2011-CX, dated 14-6-2011 in the case of Amira Tanna Industries Pvt. Ltd. [2013 (292) E.L.T. 134 (G.O.I.)] and 871/2011-CX, dated 4-7-2011 in the case of Synergy Technologies [2012 (280) E.L.T. 578 (G.O.I.)] has held that preparation of statutory requirement of ARE-1 cannot be treated as a minor or technical procedural lapse for the purpose of accepting proof of export of goods as such leniencies could lead to possible fraud of claiming an alternately available benefit. The ratio of these orders is squarely applicable to the present case. 9.3.5 Government notes that the applicant relied on the various judgments regarding procedural relaxation on technical grounds. The point which needs to be emphasized is that when the applicant seeks rebate under Notification No. 21/2004-N.T., dated 6-9-2004, which prescribes comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of the ARE-2 applications. The applicant pleaded that this is a procedural lapse on their part and rebate cannot be denied on this ground. The contention of the applicant is not acceptable as the submission of the ARE-2 is an original proof of the export duly certified by the Customs Officer and hence the same is a material requirement and cannot be attributed to the procedural lapse. Under Rule 18 of Central Excise Rules, 2002 there is no provision for condonation of non-compliance with the conditions and procedure laid down in the notification allowing rebate under said rule. 11. Government notes that in support the applicant has cited a number of decisions. However Government finds that the decisions relied upon by them are not applicable as the facts and circumstances of the quoted cases differ from that of the applicant's case. 12. Moreover, the explanation given by the applicant that due to ignorance of law the proper procedure was not followed by them, also does not appear to be genuine and creditworthy. In any case ignorance of law is no excuse not to follow something which is required to be done by the law in a particular manner. This principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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