Page 213 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : GIMPEX PVT. LTD. 747

peared for personal hearing on either of the dates. On request of the respondent
another date of hearing was fixed on 10-10-2019. Shri Arun Kanti Bhattacharya,
Consultant appeared on behalf of the respondent. He submitted additional writ-
ten submissions which have been taken on record. The respondent submitted
that they have exported Mill Scale falling under CETH 26190 09 which was mis-
takenly mentioned as CETH 7204 41 00 on the shipping bill The description of
the goods in question is the same on ARE-2 as well as the shipping bill. The en-
tire activity of export was done in the Haldia dock campus and was checked by
the Customs Officers in the dock area. The respondent has also requested for re-
jection of the prayer for condonation of delay in filing Revision Application and
an anomaly on part of the applicant in filing the Revision Application. Since no
one appeared on behalf of the applicant on any of the three date, the case is being
decided on merits. It has been observed that the Review Order has been signed
by the Commissioner of Central Excise, Haldia Commissionerate and is available
with the Revision Application. There exists an authorisation to the Deputy
Commissioner to file the Revision Application. This is a frivolous objection by
the respondent and does not merit consideration.
It is evident that applicant filed an appeal with the CESTAT against Or-
der-in-Appeal No. 44/HAL/06, dated 29-12-2006. The Tribunal vide its order
dated 13-7-2016 has remanded the matter which was received by the applicant
on 25-7-2016 and the present Revision Application was filed on 24-10-2016, i.e.,
within the stipulated period of 3 months. Accordingly the case is being taken up
for final disposal.
5. On examination of the relevant case records, the Commissioner (Ap-
peals)’s order, counter-reply, additional submissions and the Revision applica-
tion, it is observed that the essential condition for granting the rebate is that the
goods get exported and duty has been paid on such export goods in terms of No-
tification No. 41/2001-C.E. (N.T.), dated 26-6-2001 read with Notification No.
40/2001-C.E. (N.T.), dated 26-6-2001. It is not in dispute that the respondent has
exported the impugned goods and filed claim for rebate of duty on inputs with
jurisdictional Central Excise authorities.
There is a procedural lapse on the part of the respondent, since CETH on
shipping bill has been mentioned wrongly due to oversight. The applicant has
not challenged the Bank Realisation Certificate mentioning details relating to
invoice no. and date, description of goods, customs authenticated shipping bill,
bill of lading and FOB value realized in Foreign Exchange. The fact that the cus-
toms preventive officer has certified the export of impugned consignment and
remittance has also been received against the said export has not been contested.
Reliance is placed on the judgment of Hon’ble High Court of Bombay in
the case of Zandu Chemicals Ltd. v. Union of India wherein the court has held that
interpretation of statutes, procedural requirement are capable of substantial compliance,
and cannot be held to be mandatory 2015 (315) E.L.T. 520 (Bom.). Further, Government,
in the case of Agio Pharmaceuticals Ltd. has held substantial condition of Rule 18 of Cen-
tral Excise Rules, 2002 are complied with, therefore rebate cannot be denied for minor
procedural infraction 2014 (312) E.L.T. 854 (G.O.I.).
In light of the above judgments Government allows the rebate of
Rs. 9,80,314.57 to the respondent.
EXCISE LAW TIMES  1st June 2020  213