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TMI Blog2024 (9) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... o India and the export invoices of buses exported by petitioner. Petitioner has demonstrated this by way of sample copies of purchase invoice of chassis and commercial invoice raised by petitioner on its customers. The procedure for submitting input-output ratio is inconsequential in the facts of the present case since the claim of the petitioner is only qua excise duty paid on chassis purchased and used in the manufacture of buses which are exported. There is no dispute that petitioner has to comply with the conditions like export of goods, receipt of foreign exchange, etc. which Respondents are entitled to verify. Also it is important to note that in the facts of the present case the claim of rebate is made qua chassis on which excise duty is paid and each one of the chassis can be used to manufacture only one bus. The order passed by Respondent No. 2, revisional authority, dated 15th September 2020, and Order-in-Appeal dated 31st December 2013, and Order in Original dated 15th May 2012, is hereby quashed and set aside - Respondent No.4 is directed to consider the application dated 8th December 2011 made by petitioner for claim of rebate of Rs.42,02,638/- on its merits without re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2011, petitioner made an application for rebate of Rs. 53,65,198/- being basic excise duty, education cess and higher education cess which according to petitioner it was entitled to by virtue of Notification No. 21/2004 dated 6th September 2004. The said notification allows rebate of the duty paid on excisable goods used in the manufacture of goods exported to countries other than Nepal and Bhutan. Along with the said application, Petitioner filed various documents including invoice issued by Volvo India for purchase of chassis, export invoice issued by petitioner, shipping bills, transport receipt, banker s certificate, etc. 6. On 3rd February 2012, Superintendent of Central Excise sought clarifications on the aforesaid application for rebate. Petitioner, vide letter dated 14th February 2012, replied to the said clarification sought. Not satisfied with the reply, a notice dated 14th March 2012 was issued by Assistant Commissioner of Central Excise calling upon Petitioner to show cause why the rebate application should not be rejected. On 26th April 2012, Petitioner replied to the said show cause notice. However, the Assistant Commissioner of Central Excise-Respondent No.4 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of declaration, Form ARE-2 and verification of input-output ratio all other requirements for being entitled to claim of rebate has been complied with. Mr. Sridharan relied upon following decisions in support of the above submissions: (i) Fertilizer Corporation of India Ltd. Vs. State of Bihar, (1988 (Supp.) SCC 73); (ii) Mangalore Chemicals Fertilizers Ltd. Vs. Dy. Commissioner, (1991) 55 ELT 437 (SC)); (iii) Um Cables Ltd. Vs. Union of India, (2013) 293 ELT 641 (Bom)); (iv) Zandu Chemicals Ltd. Vs. Union of India, (2015) (315) E.L.T. 520 (Bom)); (v) Kaizen Plastomould Pvt. Ltd. Vs. Union of India, (2015) 330 ELT 40 (Bom); (vi) Tata Engineering Locomotive Co. Vs. Union of India, (2018) 360 ELT 607 (Bom)); 10. Per contra, Mr. Mishra, Learned Counsel for Respondents in opposition submitted that if an assessee wants the benefit of rebate notification then he has to comply with the requirements of the said notification strictly and if the said requirements are not complied with then an assessee is not entitled for claim of rebate. According to Mr. Mishra there is no dispute that there is a failure on the part of petitioner to file the declaration, Form ARE-2 and input-output ratio a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods exported to any country except Nepal and Bhutan. - In exercise of the powers conferred by of rule 18 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance, Department of Revenue, notification No. 41/2001-Central Excise (N.T), dated the 26th June, 2001 (GSR 470 (E) dated the 26th June, 2001), the Central Government hereby, directs that rebate of whole of the duty paid on excitable goods (hereinafter referred to as materials ) used in the manufacture or processing of export goods shall, on their exportation out of India, to any country except Nepal and Bhutan, be paid subject to the conditions and the procedure specified hereinafter:- (1) Filing of declaration :- The manufacturer or processor shall file a declaration with the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture describing the finished goods proposed to be manufactured or processed along with their rate of duty leviable and manufacturing/ processing formula with particular reference to quantity or proportion in which the materials are actually used as well as the quality. The declaration shall also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of input-output ratio, etc. It is not that once a procedure specified in the notification is followed that an assessee becomes automatically entitled to the claim of rebate. The entitlement would be only on the satisfaction of various conditions specified above. 13. In the instant case, admittedly there is no dispute that there is failure on the part of the petitioner to file the declaration and Form ARE-2. However, on the facts of the present case there is no dispute that admittedly the buses have been exported, foreign exchange has been received, etc. Petitioner has made a claim of rebate only qua excise duty on chassis which bears a number and the said number of chassis is correlated with the invoice received by petitioner from Volvo India and the export invoices of buses exported by petitioner. Petitioner has demonstrated this by way of sample copies of purchase invoice of chassis and commercial invoice raised by petitioner on its customers. It is not the case of revenue that one chassis can be used to manufacture two buses and rightly so. Therefore, in our view on the facts of the present case verification of input-output ratio although not submitted before the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Form ARE-2. Therefore, in our view, on the facts of the present case, certainly, the rebate claim of Petitioner is required to be examined on merits and if found eligible can certainly be considered under Rule 18 of the Central Excise Rules. Rebate shall be given upon Petitioner talling the details of chassis purchased with details of chassis exported with the buses. 16. The issue whether non-production of such a declaration would justify rejection of rebate claim came up for consideration before this Court in the case of U. M. Cables Ltd. (supra) and his Lordship Justice Shri. D. Y. Chandrachud (as he then was) after analysing Rule 18 of Central Excise Rules with which we are concerned observed as under: 10. Rule 18 of the Central Excise Rules 2002 empowers the Central Government by a notification to grant a rebate of duty paid on excisable goods or on materials used in the manufacture or processing of such goods, where the goods are exported. The rebate under Rule 18 shall be subject to such conditions or limitations, if any, and the fulfillment of such procedure as may be specified in the notification. Rule 18, it must be noted at the outset, makes a clear distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 copies of the ARE-1 form duly certified by customs. The second is that the goods are of a duty paid character as certified on the triplicate copy of the ARE-1 form received from the jurisdictional Superintendent of Central Excise. The object and purpose underlying the procedure which has been specified is to enable the authority to duly satisfy itself that the rebate of central excise duty is sought to be claimed in respect of goods which were exported and that the goods which were exported were of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med. Part A contains a certification by the central excise officer to the effect inter alia that duty has been paid on the goods and that the goods have been examined. Part B contains a certification by the officer of the customs of the shipment of the goods under his supervision. 15. .. 16. However, it is evident from the record that the second claim dated 20 March 2009 in the amount of Rs.2.45 lacs which forms the subject matter of the first writ petition and the three claims dated 20 March 2009 in the total amount of Rs.42.97 lacs which form the subject matter of the second writ petition were rejected only on the ground that the Petitioner had not produced the original and the duplicate copy of the ARE-1 form. For the reasons that we have indicated earlier, we hold that the mere non-production of the ARE-1 form would not ipso facto result in the invalidation of the rebate claim. In such a case, it is open to the exporter to demonstrate by the production of cogent evidence to the satisfaction of the rebate sanctioning authority that the requirements of Rule 18 of the Central Excise Rules 2002 read together with the notification dated 6 September 2004 have been fulfilled. As we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the duplicate copies of the ARE-1 forms, if it is otherwise satisfied that the conditions for the grant of rebate have been fulfilled. For the aforesaid reasons, we allow the Petitions by quashing and setting aside the impugned order of the revisional authority dated 22 May 2012 and remand the proceedings back to the adjudicating authority for a fresh consideration. The rejection of the rebate claim dated 8 April 2009 in the first writ petition is, however, for the reasons indicated earlier confirmed. Rule is made absolute in the aforesaid terms. 17. In our view, the ratio of the above decision squarely applies to the facts of the petitioner inasmuch as in the said case of U. M. Cables (supra) the copies of declaration could not filed because they were lost. In our view, the consequences whether the declaration is not filed at all or the declaration is lost would be same inasmuch as in both cases the revenue would not have the benefit of the declaration which is required to be filed as per the notification. Therefore, in our view, petitioner is justified in placing reliance on the decision of this Court in the case of U. M. Cables Ltd. (supra). The said decision of U. M. Cabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.4 would consider all the documents and submissions and pass a reasoned and speaking order disposing the application for claim of rebate of the petitioner. Respondent No.4 would pass the order on or before 30th November 2024. 19. Rule made absolute in above terms. WRIT PETITION NO. 2910 OF 2021:- 20. For the reasons recorded above, we pass the following order:- ORDER (a) Order passed by Respondent No. 2, revisional authority, dated 15th September 2020, and Order-in-Appeal dated 31st December 2013, and Order in Original dated 15th May 2012, is hereby quashed and set aside. (b) Respondent No.4 is directed to consider the application dated 8th December 2011 made by petitioner for claim of rebate of Rs.42,02,638/- on its merits without rejecting the same on the ground that declaration and input-output ratio have not been filed. (c) Respondent No.4 is entitled to examine all other aspects with respect to the claim of petitioner. (d) Respondent No.4 would give personal hearing to petitioner, notice whereof would be intimated to petitioner at least 5 working days before the date of personal hearing. If petitioner wishes to record what transpired at personal hearing, then same may be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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