Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1406

Admissibility of Rebate claim when original documents get lost

Case: IN RE: GARG TEX-O-FAB PVT LTD
 
Citation: 2011 (271) ELT 449 (G.O.I.)
 
Issue:- Rebate claim – original documents lost – whether rebate admissible on the basis of collateral evidence for export of goods?
 
Brief Facts:- Respondent filed four rebate claims dated 28-8-06 for rebate of Central excise duty paid on the goods cleared under ARE-1 No. dated 29-12-05, 6-12-05, 4-2-06 and 5-12-05 respectively. On scrutiny of the claims, it was observed that original, duplicate and triplicate copy of ARE-1, dupli­cate copy of invoice were not enclosed with the said rebate claims. The sailing date on mate receipt does not match with date of Bill of Lading. Also letter dated 3-8-06 addressed to Maritime Commissioner, Central Excise, Raigad mentioned that Respondent are merchant-exporters, whereas from ARE-1 and Central Excise Invoice it appears that they are manufacturer.
 
Deficiency memo-cum-show cause notice was issued and the Adjudicating Authority rejected the rebate claims. The Assistant  Commissioner rejected the rebate claims as the respondent could not produce the original documents i.e. original, duplicate & triplicate copies of the ARE-I as re­quired under the provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9- 04.
 
Being aggrieved, Respondent filed appeal before the Com­missioner (Appeals). The Commissioner (Appeals) held that the right to re­bate on export of excisable goods is granted by the statute and the documents listed in the Notification and departmental instruction are only evidence of the occurrence/event to which they relate to when available, the original ARE-1 and invoice copies proved removal from factory on payment of duty, export details etc. When same thing can be proved by collateral evidence/reconstructed copies, the rebate cannot be denied. The representative of the respondents while travelling lost the documents. The respondent lodged a police complaint also but the documents could not be recovered. The loss of the documents in these circum­stances cannot extinguish the statutory right of rebate. The Basic Manual of De­partmental Instructions of AR-4 forms as per Board's Letter F. No. 17/19-C.X.- 11/51, dated 23-5-1955. There is no dispute regarding duty payment and export. The law is settled that substantial benefits granted by the law cannot be denied on technical grounds. Accordingly, the impugned order rejecting the rebate claims on technical grounds was set aside.
 
Revenue has filed revision application under Section 35EE.
 
Applicant’s Contention:- Revenue contended that the point regarding the finding of Maritime Commissioner that how the goods shall be shipped on board after the ship had sailed was not answered. The issue regarding difference in date shown on mate receipt and In ARE-1 No. 22 & 23 is a clerical mistake and the date shown on mate receipt is the correct date has not been authenticated/supported by shipping company/customs officers. It was alleged hat the conditions, limitation and procedure prescribed in Notification No. 40/2001-CE(NT) dated 26.06.2001 and Notification No. 19/2004-CE(NT) dated 06.09.04 as amended issued under Rule 18 of Central Excise Rules,2002 for grant of rebate of duty for export of goods not adhered to. Original copy of statutory documents not submitted with the claim and therefore the duty paid nature of the goods cannot be ascertained nor established and therefore, the fundamental criteria envisaged in Para 8.4 Part I Chapter 8 of CBEC’s Excise Manual of Supplementary Instructions for ascertaining the duty paid character/nature/identification of the goods exported, are not fulfilled. The loss of revenue by grant of such rebate on the basis of photocopies not envisaged. Much importance is given to the originality of the documents.
 
Reliance was placed on the following judgments and it was contended that the issue in dispute in the present case is squarely covered in an identical set of circumstances holding that the basis of xerox copies of documents have no evidence and liable to be misused as any number of copies can be made from one document:
 
- J. Yashoda v. K. Shobha Rani [2007 (212) E.L.T. 458 (S.C.)]
- M/s. Jandial Shoe Factory v. C.C.E., Kanpur [2006 (193) E.L.T. 128 (Tn.)]
- C.C.E., Surat-II v. Mercury Plast [2005 (191) E.L.T. 595 (Tri.-Mum)]
- C.C.E., Chandigarh v. Vision Electronics [2004 (175) E.L.T. 653 (Tn. ­Del.)].
- L&T Ltd. v. C.C.E., Mumbai [2003 (161) E.L.T. 795 (Tri.-Del.)].
 
Respondent’s Contention:- Respondent-assessee contended that there is no allegation that goods cleared for export has not been exported. The physical export of fabrics was certified by Customs as well as Central Excise. Further, they have received the remittances from abroad. Proper duty has been paid at the time of clearance. There is no allegation that the fabrics cleared were not duty paid.
 
It was submitted that the shipping bills in respect of all the four ARE-1s also showed he ARE-1 No. and date. They contained all particulars contained in ARE-1 including weight tally with the Shipping Bill and Bill of lading. The same preventive Officers who signed the ARE-1s have signed the shipping bill. The same Central Excise officer who issued the certificate of duty payment has signed the original sixtruplicate copy of the ARE-1. This is also countersigned by the Customs Authorities.  The jurisdictional Supdt has also certified the duty payment and in lieu of triplicate issued the attested copy of ARE-1 in sealed cover. The preventive officer of customs showing therein the mate receipt No. &n dated and certified the physical export signed the shipping bill as well as ARE-1. The goods manufactured by them were exported and duty was paid on the same. And foreign remittances were also received.
 
It was submitted that in case of any doubt arising with the Maritime Commissioner the genuineness of the document could have been very well referred to the Customs Authorities and Central Excise Authorities and could have been verified.   
 
Respondent relied on Board's Circular No. 510/06/2000-C.X. dated 3-2-03 regarding assessment which is the duty of Range Officer and rebate sanc­tioning authority should seen the admissibility of rebate claim and Government of India Order No. 7 to 9/2001 dated 19-1-01 - M/s. Krishna Filaments [2001 (131) E.L.T. 726 (GOI)] - Rebate claims should not be rejected on technical grounds.
 
With regard to difference in dates shown in Bill of lading and mate receipt, it was submitted that there is no difference in respective ARE-1s dated 5.12.05 and 4.2.06. But there is slight variation in he ARE-1s dated 29.12.05 and 06.12.05, there is a slight difference which is because of a clerical mistake. The date shown in mate receipt is correct and proper. This date on mate receipt is certified by the Customs officer on the ARE-1. The shipping bill number is mentioned on both the mate receipt as well as bill of lading and ARE-1 number is shown on the shipping bill. All these tally together. Further, the Customs Authorities countersigns the shipping bills by showing the mate receipt number and date of sailing.    
 
Reasoning of Judgment:- Government observed that the respondent could have reconstructed the documents (ARE-1s) as per the provisions of Board letter F. No. 17/19-CX-II/51, dated 23.05.1955 duly endorsed/certified by the jurisdictional Central Excise Authorities and as regards Par ‘B’ of ARE-1s from the Superintendent of Customs who have passed the Shipping Bills and allowed the export. It is observed that instead of rejecting the rebate claims for non-submissions of original copies of the ARE-1s purportedly lost by the applicant should have considered collateral evidence to verify whether the duty paid goods have actually been exported or not. 
 
Government set aside the impugned orders and remanded the case back to the Original Adjudicating Au­thority to decide the case afresh after giving proper opportunity to the respondent who may submit all requisite collateral evidences/documents to prove the ex­port of duty paid goods as per provisions of Notification No. 19/2004-C.E. (NT.), dated 6-9-04 read with Rule 18 of Central Excise Rules, 2002.
 
Decision:- Appeal allowed by way of remand. 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com