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TMI Blog2013 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods i.e. lubricant oil exported the same on payment of duty. That the said goods were exported upon filing 4 ARE 1s. According to the petitioners the said goods were exported directly from their factory. According to the petitioners the original as well as duplicate copies of ARE 1s were lost/stolen for which an FIR came to be lodged with Nahva Sheva Police Station, Thane. That the petitioners submitted an application before the appropriate Authority claiming rebate of duty of ₹ 3,63,089/ under the provisions of Rule 18 of the Rules on 30-12-2009. That along with the application for rebate of duty, the petitioners submitted the triplicate copy of 4 ARE 1s and other documents such as Mate receipts, bills of lading and shipping bills in support of their claim that as such the goods were exported from their factory on payment of duty. That on the petitioners rebate claim, the Deputy Commissioner of Central Excise and Customs Division-III - Respondent No. 3 issued a show cause notice on 13-1-2010 raising objection that the claim has been submitted after the expiry of stipulated period of six months from the date of export. That the petitioners replied to the said show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and sealed by Central Excise Officers in containers and same container number and customs seal number are mentioned in corresponding shipping bill, Mate Receipt and Bill of lading. 3.3 Feeling aggrieved and dissatisfied with the order passed by the Commissioner (Appeals) dated 22-7-2010 in directing to sanction the rebate claims of the petitioners with respect to ARE 1s as mentioned in Para 5 of the order-in-appeal, the Revenue preferred Revision Application before the Revisional Authority - Joint Secretary (Revision Application) and by impugned order the Revisional Authority has allowed the said revision application quashing and setting aside the order dated 22-7-2010 passed by the Commissioner (Appeals) and rejected the rebate claim of the petitioners solely on the ground that as the petitioner-exporter has not produced the original and duplicate copies of ARE 1s, which is required to be produced along with the rebate claim as per Paras 8.3 and 8.4 of CBEC s Excise Manual of Supplementary Instructions, which is held to be mandatory in nature, the exporter is not entitled to rebate claims. 3.4 Feeling aggrieved and dissatisfied with the impugned order passed by the Revisi ..... 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Special Civil Application No. 1265/2013 and Shri Gaurang Bhatt, learned Central Government Standing Counsel has appeared on behalf of the Department in Special Civil Application No. 17481/2012. 4.1 Shri Gupta, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that the Revisional Authority has materially erred in quashing and setting aside the orders passed by the Commissioner (Appeals) and rejecting the rebate claim of the petitioners solely on the ground that the petitioners-exporters have not produced the original and duplicate copies of ARE 1s along with the rebate claim. 4.2 It is submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that as such on appreciation of the other documents on record the Commissioner (Appeals) had specifically given the finding that the actual export and the payment of duty has been evident and when thereafter, the Commissioner (Appeals) passed an order sanctioning the rebate claim and that too with respect to those ARE 1s where goods were examined and sealed by the Central Excise Officer in container and the same container number and customs seal number are mentioned in corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under Central Excise Rule 18 are complied with. 4.4 It is further submitted by Shri Gupta, learned advocate appearing on behalf of the petitioners that for claiming/getting the rebate of duty, production of original and duplicate copies of ARE 1s is not condition precedent. It is submitted that as such production of original and duplicate copies of ARE 1s is a procedural one along with other corresponding supporting documents so as to satisfy the authority to consider the rebate claim of the exporter whether in fact excisable goods have been exported after payment of duty directly from the factory or warehouse or not as claimed by the exporter. It is submitted that as such the conditions and limitations for rebate of duty are mentioned in Clause 2 of the notifications under Central Excise Rule 18, in which no such condition of production of the original and duplicate copies of ARE 1s is mentioned. 4.5 It is further submitted by Shri Gupta, learned advocate for the petitioners that as such production of the original and duplicate copies of ARE 1s along with the rebate claim is a procedural one and therefore, on non production of the same along with the rebate claim on va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the concerned ARE 1s are even doubted. It is submitted that the Revisional Authority has denied the rebate claims solely on the ground that along with the rebate claim, the exporter has not submitted the original and duplicate copies of ARE 1s, which cannot be sustained even on facts of law, more particularly, the finding given by the Commissioner (Appeals) with respect to actual export on payment of duty in presence of the concerned officers of the Department, from the factory. Making above submissions and relying upon the aforesaid decisions of the Bombay High Court, it is requested to allow the present Special Civil Applications. 5. Both these petitions are opposed by Shri R.J. Oza, learned counsel and Shri Gaurang Bhatt, learned Central Government Standing Counsel appearing on behalf of the Department. It is submitted by learned counsel appearing on behalf of the department that as such and in the facts and circumstances of the case, there is no error and/or illegality committed by the Revisional Authority in rejecting the rebate claim of the respective petitioners on non production of the original and duplicate copies of ARE 1s. It is submitted that as such productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is submitted as rightly observed by the Revisional Authority, ARE 1 is basic essential document for export of duty [paid goods] under the rebate claim. It is submitted that the custom certification on the said copy of ARE 1s as such proves the export of goods and therefore, in absence of the said original and duplicate copies of ARE 1s; the rebate sanctioning Authority has no chance to compare those documents with triplicate copy of ARE 1s and therefore, he cannot satisfy himself of the correctness of the rebate claim. Therefore, it is submitted that submission of original and duplicate copies of ARE 1s duly endorsed establishes the export of duty paid goods and therefore, essential requirement cannot be done away with. 5.2 It is further submitted by learned counsel appearing on behalf of the Department that as rightly observed by the Revisional Authority, the nature of above requirement is a statutory condition and if the submission/production of the same is done away, in that case, it would lead to possible fraud of claiming and alternative available benefit which may amount to addition of double benefit. Therefore, it is submitted that as such the Revisional Authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Conditions and limitations : (a) that the excisable goods shall be exported after payment of duty, directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order; (b) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow; (c) that the excisable goods supplied as ship s stores for consumption on board a vessel bound for any foreign port are in such quantities as the Commissioner of Customs at the port of shipment may consider reasonable; (d) the rebate claim by filing electronic declaration shall be allowed from such place of export and such date, as may be specified by the Board in this behalf; (e) that the market price of the excisable goods at the time of exportation is not less than the amount of rebate of duty claimed; (f) that the amount of rebate of duty admissible is not less than five hundred rupees; (g) that the rebate of duty paid on those e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on the letterhead of the exporter containing claim of rebate, ARE 1 numbers and dates, corresponding invoice numbers and dates amount of rebate on each ARE 1 and its calculations, (ii) Original copy of the ARE 1, (iii) Invoice issued under Rule 11, (iv) Self attested copy of shipping bill, and (v) Self attested copy of Bill of lading, (vi) Disclaimer Certificate [in case where claimant is other than exporter] Thus, as per the aforesaid procedure, exporter claiming rebate of duty paid is required to submit the aforesaid documents which includes the original copy of ARE 1. It cannot be disputed that the aforesaid documents are required to be submitted along with the rebate claim so as to satisfy the concerned Authority considering the rebate claim whether in fact the conditions and limitations as mentioned in the aforesaid notification for grant of rebate are satisfied or not i.e. whether the excisable goods have in fact been exported after payment of duty, directly from the factory or warehouse or not and that the excisable goods have been exported within six months from the date on which they were cleared for export from the factory or warehous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . are mentioned in corresponding Mate Receipt, Bill of lading and shipping bill. It is thus evident that the goods against same ARE 1 were exported and hence substantial condition of payment of duty and export of duty paid goods are satisfied. Therefore, the rebate claim cannot be rejected on the ground that procedural requirements as per par 8.3 and 8.4 of CBEC s Excise Manual of Supplementary Instructions could not be fulfilled. 4.3 I find that CESTAT in cases of Model Buckets Attachments Pvt. Ltd. v. CCE, Belgaum as reported in 2007 (217) E.L.T. 264 (Tri.) and CCE v. Kanwal Engineers as reported in 1996 (87) E.L.T. 141 (Tri.) held that if the goods are stuffed in the factory by Central Excise Officers, the supporting documents like shipping bill, mate receipt, bill of lading etc. can be used to establish export of goods if original and duplicate copies of ARE 1 are lost. The ratio of said decisions is exactly applicable in this case because the goods were sealed by the Central Excise officers in containers and same container No. and customs seal No. are mentioned in corresponding shipping bill, Mate Receipt and Bill of lading. At this stage, it is required to be noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved herein above, along with the rebate claim, an exporter claiming rebate of duty is required to produce number of other documents such as shipping bill, bills of lading, mate receipt etc. If the intention was to produce and consider the original and duplicate of ARE 1, only in that case, there is no requirement of production of other documents. Under the circumstances, merely because the exporter could not produce/submit along with the rebate claim, the original and duplicate copies of ARE 1 but has produced other documents like mate receipt, shipping bills, bills of lading etc. and from the supporting and corresponding documents is able to prove and establish that the excisable goods have in fact been exported on payment of duty from its factory/warehouses and all other conditions and limitations mentioned in Clause (2) of the notification issued under Rule 18 are satisfied, exporter shall be entitled to the rebate of duty. 6.4 The aforesaid issue is also required to be viewed from another angle. It cannot be disputed that an exporter is entitled to the rebate of the duty under Rule 18 on fulfillment of the conditions and limitations mentioned in Clause (2) of the notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom other documents produced that all the conditions and limitations mentioned in Clause (2) of the notification issue under Rule 18 are satisfied and in fact the excisable goods have been exported on payment of duty from its factory or warehouse and other limitations and conditions are satisfied. In the present case, as stated herein above, on facts and on appreciation of other documents like mate receipt, shipping bills, bills of lading etc., Commissioner (Appeals) had given the finding which is reproduced herein above and the said observation and finding of the Commissioner (Appeals) with respect to the actual export of the exported goods on payment of duty, from their factories have not been upset by the Revisional Authority. 6.5 At this stage the decision of the Bombay High Court in the case of U.M. Cables Ltd. (supra) is required to be referred to. In the case before the Bombay High Court also, the exporter who claimed the rebate of duty could not submit the original and duplicate ARE 1s and his rebate claim under Rule 18 came to be rejected on the ground of non-submission and original and duplicate ARE 1s and to that the Bombay High Court in Paras 10 to 13 has observed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duplicate copies of the application to the Commissioner of Customs. The Commissioner of Customs after examining the consignment with the particulars cited in the application is to allow the export if he finds that the particulars are correct and to certify on the copies of the application that the goods have been duly exported. The claim for rebate of duty is presented to the Assistant or Deputy Commissioner of Central Excise who has to compare the duplicate copy of the application received from the officer of customs with the original copy received from the exporter and the triplicate received from the central excise officer. 11. The Manual of Instructions that has been issued by the CBEC specifies the documents which are required for filing a claim for rebate. Among them is the original copy of the ARE 1, the invoice and self attested copies of the shipping bill and the bill of lading. Paragraph 8.4 specifies that the rebate sanctioning authority has to satisfy himself in respect of essentially two requirements. The first requirement is that the goods cleared for export under the relevant ARE 1 applications were actually exported as evident from the original and duplicate copi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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