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TMI Blog2019 (5) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... entary instructions would arise only when the goods are removed out of the factory for export and brought back later to the factory on cancellation of the export order and not in a case where the export itself did not take place - The authorities below have without considering the above factual aspects rejected the appellant s plea on the ground of not following the procedure which according to me is not correct. The Revenue should have enquired/investigated about, when the appellants made refund claim or thereafter, when the reason for making refund claim was clearly cancellation of the first ARE-1 - When the SCN itself refers to the fact of intimation about the non-clearance/cancellation of ARE-1 coupled with the fact of lack of enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be refunded. They also further pleaded that the said goods were cleared vide invoice No. EI 1516500180 dated 26.09.2015 under ARE-1 No. B183/2015-16 dated 26.09.2015 after payment of central excise duty of ₹ 12,21,453.75. Based on the above, the appellant made a claim for refund of duty of ₹ 11,69,079/- by its application dated 02.11.2015 before the adjudicating authority under Section 11B of the Central Excise Act, 1944. 3. A few material dates which are relevant are as under:- S.No. Date Event Value 1 23.06.2015 ARE-1 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on 07.10.2015 ie., after a lapse of more than 3 months from the cancelled ARE-1 and more than 10 days after the export had actually happened, making it impossible for the Range officer to ascertain physically as to whether the said goods were retained in the factory premises after the abandoned export on 23.06.15 and that the same were exported subsequently on 26.09.2015. iii) The daily stock account of the factory is the basic document to substantiate their claim that the subject goods were retained on 23.06.2015 and duty accounted in the Stock Register and subsequently the same were exported on 26.09.2015, the Opening Stock Register submitted by them reveals that as on 26.09.2015, the opening Balance of stock is 0 (nil) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst ARE-1 and the second ARE-1 forms, wherein, there is no change in the quantity or the price except with regard to the foreign exchange rate and this fact has never been disputed by the lower authorities and therefore it can be safely assumed that both forms of ARE-1 are referring to the same/only one invoice. Further, it is a case where the goods were intended to be cleared/removed on payment of duty and not on bond, which fact is also not disputed by the authorities below either in the SCN or in the subsequent orders and therefore, I am of the opinion that the procedures prescribed would not apply to the case on hand. It is a case where goods were exported by the appellant under the subsequent ARE-1 for which the duty was paid twice sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the non-clearance/cancellation of ARE-1 coupled with the fact of lack of enquiry and no finding as to clearing manufactured goods in any other way than reported, the fact of non-clearance of first ARE-1 has to sustain. Moreover, when the Revenue entertains a dispute as to the daily stock account, it was all the more expected that they make appropriate enquiries at the relevant point of time and therefore in the absence of any contrary factual evidence as to the procurement of additional raw materials, etc., as indicated herein above, such disputes/allegations howsoever, strong cannot be held to be sufficient. 7. For the above reasons therefore, I am of the considered opinion that the impugned order is not sustainable and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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