whether rebate allowable when there is mismatch between the particulars mentioned in invoice and ARE-1?

PJ/Case Law/2016-17/3360

Case:- LIFETIME INTEREXPO PVT. LTD. Versus UNION OF INDIA

Citation:-2016 (342) E.L.T. 199 (All.)

Brief facts:- The petitioner claimed rebate of Central Excise Duty on alleged export of certain goods. The Assistant Commissioner, Customs and Central Excise, Agra (hereinafter referred to as the “A.C., C.C.E.”) issued show cause notice dated 11-11-2005 stating that on scrutiny of petitioner’s rebate claim it was found that description of goods in invoice No. 27 dated 19-6-2005 and in ARE-I No. 7/2005-06 did not match and excise duty which was payable was not paid in all four invoices and, therefore, it appears that claim of petitioner was not genuine.
Petitionersubmitted reply dated 16-11-2005 and thereafter the A.C., C.C.E. passed order dated 16-12-2005 finding that description of goods did not tally and even the gross weight and net weight of goods shown in ARE-I and shipping bills also do not tally. It thus rejected rebate claim of petitioner for Rs. 4, 17,058/. There against petitioner preferred appeal wherein also the Appellate Authority found that description of goods did not tally. Similarly on the question of gross weight and net weight difference, petitioner could not explain the same and, therefore, it also dismissed appeal vide order dated 29-8-2006 and confirmed the order of A.C., C.C.E. and petitioner’s revision was rejected vide order dated 5-6-2009.

Appellant’s contention:-Sri Udit Chandra, learned counsel appeared for the petitioner. Learned counsel for the petitioner submitted that the grounds mentioned in show cause notice have been widened in passing the impugned orders and his claim has been rejected on certain grounds not stated in show cause notice. He placed reliance on Commissioner of Central Excise, Chandigarh v. M/s. Shital International, AIR 2010 SCW 6835 = 2010 (259)E.L.T.165 (S.C.); Commissioner of Customs, Mumbai v. M/s. Toyo Engineering India Ltd., AIR 2006 SCW 5167 = 2006 (201)E.L.T.513 (S.C.); Madhav Steel v. Union of India and Others, Writ Petition No. 2706 of 2006, decided on 10-8-2010 [2016 (337)E.L.T.518 (Bom.)]; Formica India Division v. Collector of Central Excise and Others, 1995 Supp.(3) SCC 552 = 1995 (77)E.L.T.511 (S.C.); Commissioner of Central Excise, New Delhi v. M/s. Hari Chand Shri Gopal and Others, 2011 AIR SCW 1119 = 2010 (260)E.L.T.3 (S.C.); and, Kusheshwar Prasad Singh v. State of Bihar and Others, 2007(11) SCC 447.

Respondent’s contention:- Sri Siddharth Shukla, Advocate appeared on behalf of respondents and reiterated the submissions.

Reasoning of judgment:- However, Hon’ble judge found that so far as description of goods did not tally with the invoice no. 27 and ARE-I are concerned, it was mentioned in show cause notice and was found to be correct. The petitioner was unable to give explanation in this regard. Similarly, for the purpose of difference of weights, the details were discussed in the order of A.C., C.C.E. and petitioner got opportunity even before Appellate Authority but was unable to explain the same satisfactorily. The difference could not be explained even before this Court.
Mismatch ofgoods mentioned in invoices and AREs was one of the grounds taken by A.C., C.C.E. It was true that A.C., C.C.E. had referred to such dispatch only in respect of invoice No. 27 and ARE-I No. 7/2005-06 but the Appellate Authority had considered on this aspect in respect to other invoices also as is evident from paras 10, 11 and 12 of the judgment and he found that goods did not match not only in respect of invoice No. 27 but invoice No. 30 also and in respect of invoice No. 28 he found that gross weight and net weight of goods shown did not tally. This very defect was also found in invoice No. 30. In the revision preferred by petitioner the above findings recorded by Appellate Authority were not shown perverse or contrary to material on record.
In viewthereof, they also did not find any justification to interfere with aforesaid findings of facts.
Coming to thedecisions cited at Bar on behalf of petitioner, they found that in Commissioner of Central Excise, Chandigarh v. M/s. Shital International (supra) the court found that notice issued to assessee-company did not mention any of the ingredients required to substantiate the charge which may justify rejection of his stand and levy of Cenvat and other duty additionally.
InCommissioner of Customs, Mumbaiv. M/s. Toyo Engineering India Ltd.(supra) the Revenue sought to raise certain issues for the first time in second appeal before Tribunal though these issues were never raised commencing from show cause notice, initial order passed by Assessing Authority and in the first appeal. It was in these circumstances, the Court observed that department cannot travel beyond the show cause notice and even in the grounds of appeal these points were not taken but that was not the case herein.
Similar was the case in Formica India Division v. Collector of Central Excise (supra) where the Revenue intended to raise an issue for the first time before High Court which was held impermissible by Apex Court. Similarly, other decisions did not help petitioner. They, therefore,did not find any reason to interfere with the impugned orders.
The writ petition lacked merit and hence was Dismissed. Interim order, if any, stands vacated.

Decision:- Petition dismissed

Comment:-The gist of this case is that as assessee was unable to correlate the documents submitted with the rebate claim, the claim was not admissible to him. Here had he contested the fact that all the other parameters mentioned in invoice, ARE-1 and shipping bill perfectly correlate to each other and merely difference in description of goods and weight was not a substantial reason to deny the rebate claim, there were major chances that he would have been granted the refund. There have been various judgements wherein it has been held that denying the benefit to a assessee merely on procedural and technical lapses was not accurate and justified.

Prepared by:- Monika Tak

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PJ/Case Law/2016-17/3360

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