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TMI Blog2017 (7) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. They were having parental unit under the same name and style located at G.T. Road, Suranussi, Jalandhar and the appellant' unit located at Focal Point, Jalandhar. The appellant is manufacturing goods and supplying to their parental unit for export. The appellant is clearing the goods to the parental unit through vide ARE-1 No.19 and 20 dated 5.10.2005 and 6.10.2005 without payment of duty as the goods are exported by the parental unit. As the parental unit did not mention the goods cleared against ARE-1 No. 9 and 20 in the shipping bills, it was alleged that the goods covered under ARE-1 have been cleared clandestinely by the appellant without payment of duty. In these sets of facts, the proceedings were initiated against the appellant to demand duty alongwith interest and to impose penalty on the appellant. The matter was adjudicated and it was held that the goods supplied under ARE-1 certificate were not exported, therefore, the demand of duty was liable to be paid by the appellant. Aggrieved with the said order, the appellant is before us. 3. Learned Counsel for the appellant submits that it is the inadvertent mistake of the parental unit, who failed to mention ARE-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence to whom the goods have been cleared by the appellant clandestinely without payment of duty. Moreover, no credence was given to the letter dated 7.6.2006 written by the appellant to the Assistant Commissioner, CFS, Jalandhar. 7. As the appellant has been able to show his bonafide that there was inadvertent mistake committed by the parental unit by not mentioning the ARE-1 No.19 and 20 in the shipping bills. But the goods covered in ARE-1 No.19 and 20 have been mentioned in the invoices covered in shipping bills. In that circumstance, the charge of clandestine removal of the goods is not sustainable. 8. Further, we find that there was procedural mistake committed by the parental unit by not mentioning the ARE-1 No.19 and 20 in the shipping bills, in that circumstance, the penalty is imposed under Rule 27 of Central Excise Rules, 2002 to the extent of ₹ 5,000/- is confirmed. 8. In view of the above discussion, the following order is passed: (a) the demand of duty has been set aside (b) The penalty imposed on the appellant under Rule 25 of Central Excise Rules, 2002 read with section 11 AC of Central Excise Act, 1944 is also set aside. (c) The penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the Shipping Bill No. detailed in your letter dt. 22.06.2006. Besides, M/s. Broadways Overseas Ltd, GT Road, Suranassi, Jalandhar, there is no other Party on record of the said Shipping Bills. The ARE-1's filed by M/s Broadways Overseas Ltd, GT Road, Suranassi, Jalandhar stands endorsed to this effect. As regard, the ARE-1 BOI-2/19/2005-06 dt. 05.10.2005 and BoI-2/20/2005-06 dt. 06.10.2005 of M/s. Broadways Overseas Ltd (Unit-II), A-12, Focal Point, Jalandhar filed with this office in February 2006, the request for endorsement against the said Shipping Bills mentioned in your letter dt 22.06.2006 has already been rejected on 07.04.2006 and 03.06.2006 as the subject ARE-1's were neither filed at the time of filing of the said shipping bills nor were produced at the time of actual shipment for the required endorsement on the reverse of ARE-1. Further, the subject Shipping Bills did not carry any information about the goods having been manufactured by other than the exporting unit i.e. M/s Broadways Overseas Ltd, G.T. Road, Suranassi, Jalandhar. Accordingly ARE-1 BoI-2/19/05-06 dt. 05.10.2005 and BoI-2/20/05-06 dt. 06.10.2005 could not relate with the exports mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the quantity as shown by the noticee in the chart has also not been rebutted. Since the impugned ARE-1 did not bear the certification of proper officer that shipment have been exported, the burden was on the appellants to prove that the whole quantity of a particular item exported by Unit No.1 was not manufactured by Unit No.1 especially when the declaration on the shipping bill was that Unit No.1 is manufacture/exporter. This point has been brought by the Ld. Commissioner in Para 12.2 in his order and the same has not been rebutted. 9. In view of the above, the appellants have failed to substantiate their claim that they had exported the goods cleared from Unit No.2. 10. The contention of the appellants that there is no domestic market for impugned goods has not been substantiated either before the Commissioner or before this Tribunal. 11. Mere Presentation of the ARE-1 document is no proof that the goods were even either presented for the examination. It has no evidentiary value with regard to actual export of goods in the absence of the certification at the required place on the back of the ARE-1 by the both designated officers (emphasis supplied). The Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duplicate ARE-I along with rebate claim in any exigency and that is why, no such provision as is available in Chapter 7 read with Rule 19 of Rules, 2002 has been made. 22. It is not in dispute that the procedure laid down with regard to filing of ARE-I before export of goods has not been followed in the present case by petitioner. The petitioner, however, claim that it should be treated a mere technical error so as not to affect substantially his rebate claim while respondents case is that it is mandatory procedure whereupon the entire rebate claim shall be founded. 23. From a bare reading of Rule 18 of Rules, 2002 it is evident that in order to entitle a person to claim rebate, it is open to Government of India by notification to provide a procedure for claiming rebate benefit. It is in purported exercise of power thereunder that the Notification dated 06.09.2004 has been issued which specifically contemplates filing of ARE-I, verification of goods sought to be exported and sealing of goods after such verification by authorities on the spot, i.e., factory premises etc. In case the procedure of filing ARE-I is given a go-bye, the authorities available on spot shall not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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