Star Dyes and Intermediates vs Union of India

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Mukesh R. Shah, J.—By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned judgement and order passed passed by the revisional authority (Annexure-F) and to grant rebate claim. Facts leading to the present petition, in nutshell, are as under:-

1.1 That the petitioner filed rebate claim of Rs. 2,76,040/- in respect of duty paid goods exported to Germany under ARE-1 No. 48/08-09 dated 10/2/2009. On scrutiny of the documents of the petitioner it was found that the petitioner did not submit the copy of the ARE-1 (original copy duly certified by the Customs Authority) and invoice (duplicate copy of transport, in original). It was also found that even the Division Office neither received duplicate copy of the said ARE-1 (in original) and duly authorised by the Customs Authority of the Port of Customs nor the same were submitted by the petitioner in a sealed cover. On perusal of the shipping bill, it was found that there was endorsement on page No. 3 of Shipping Bill about ARE-1 No. 50 dated 10/2/2009 and there was no endorsement of the subject ARE-1 No. 48 dated 10/2/2009 on the Shipping Bill by the Customs Authority of the Port of Export. Thus, it was found that the petitioner had not exported the goods of ARE-1 No. 48 dated 10/2/2009 for which they claimed rebate. Therefore, a Show Cause Notice dated 10/11/2009 was issued to the petitioner and the petitioner was called upon to show cause as to why its rebate claim may not be rejected.

1.2 That after giving an opportunity to the petitioner, the Deputy Commissioner, Central Excise, Division-Ill, Ahmedabad-1 rejected the rebate claim of Rs. 2,76,040/- vide Order-in-Original.

1.3 Feeling aggrieved and dissatisfied with the Order-in-Original passed by the Deputy Commissioner, Central Excise, Division-III, Ahmedabad-I, rejecting the rebate claim of Rs. 2,76,040/-, petitioner preferred an appeal before the learned Commissioner (Appeals), who upheld the Order-in-Original and rejected the appeal. Feeling aggrieved and dissatisfied with the Order-in-Appeal, petitioner preferred a revision application before the Central Government and the revisional authority by the impugned order has rejected the said revision application and confirmed the order passed by both the authorities below.

1.4 Feeling aggrieved and dissatisfied with the order passed by the revisional authority, petitioner has preferred the present Special Civil Application under Article 226/ 227 of the Constitution of India.

Mr. Nirav Shah, learned advocate appearing on behalf of the petitioner has vehemently submitted that all the authorities below have materially erred in rejecting the rebate claim of the petitioner mainly on the ground that the petitioner has not followed the procedure which was required to be followed under Rule 18 more particularly of not submitting Original ARE-1. Relying upon the decision of the Punjab & Haryana High Court in the case of Spl Industries Ltd. Vs. Union of India and Others, and decision of this Court in the case of Indian Oil Corporation Ltd v. Union of India, 2012 (280) ELT 507 (Guj.) It is submitted that on the basis of the other material on record, if it is established that goods were in fact exported, even if original ARE-1 is not produced, rebate can be granted. Therefore, it is requested to allow the present Special Civil Application.

Present petition is opposed by Mr. A.Y. Kogje, learned advocate appearing on behalf of the department. It is submitted that there are concurrent findings of facts given by all the authorities below and even considering the material on record, as such the petitioner could not establish and/or prove that as such it exported the goods of ARE-1 No. 48 dated 10/2/2009 under Shipping Bill No. 7074421 for which they have claimed rebate. It is submitted that it was found that in the Shipping Bill No. 7074421 there was no mention with respect to ARE-1 No. 48 and there was a reference with respect to ARE-1 No. 50 only. It is submitted that correspondingly even in the triplicate of ARE-1 No. 48, which was submitted by the petitioner within a period of 24 hours, there was no mention with respect to Shipping Bill No. 7074421 for which the petitioner claimed rebate. It is submitted that therefore, even on the basis of the material on record, all the authorities have come to the conclusion that as such the petitioner has not exported the goods of ARE-1 No. 48 dated 10/2/2009 under Shipping Bill No. 7074421. It is submitted that therefore, in the facts and circumstances of the case, the decisions relied upon by the petitioner shall not be of any assistance to the petitioner and/or shall not be applicable to the facts of the case on hand.

Making above submissions it is requested to dismiss the present petition.

Heard the learned advocates appearing on behalf of the respective parties at length.

4.1 At the outset, it is required to be noted that the petitioner claimed rebate of Rs. 2,76,040/- in respect of which duty paid goods exported to Germany under ARE-1 No. 48 dated 10/2/2009. It was the case on behalf of the petitioner that the petitioner exported the goods under Shipping Bill No. 7074421. However, on verification and/or on scrutiny of the documents submitted by the petitioner, it was observed that the petitioner did not submit the original copy of the ARE-1 duly certified by the Customs Authority and Invoice (duplicate copy of transport, in original). It was also found that the even Division Office did not receive duplicate of the said ARE-1 in original duly authorised by Customs Authority of the Port of Export. On perusal of the Shipping Bill, it was found that there was endorsement on page No. 3 of Shipping Bill about ARE-1 No. 50 dated 10/2/2009 and there was no endorsement of the subject ARE-1 No. 48 dated 10/2/2009 on the Shipping Bill by the Customs Authority of the Port of Export. Even in the triplicate of ARE-1, there was no endorsement certified by the Customs Authority with respect to Shipping Bill No. 7074421. Considering the aforesaid facts and circumstances of the case and on appreciation of evidence and considering the material on record, when all the authorities below have concurrently found that the petitioner had not exported the goods of ARE-1 No. 48 dated 10/2/2009 under Shipping Bill No. 7074421 for which they claimed rebate, we are of the opinion that as such no error has been committed by any of the authorities below. It is required to be noted that there are concurrent findings of facts arrived at by all the authorities below and in writ jurisdiction under Article 226 of the Constitution of India, this Court is not required to interfere with the findings of fact recorded by the authorities below, which are on appreciation of evidence and/or on material on record. It does not appear that the findings recorded by all the authorities below are perverse. Under the circumstances and on the basis of material on record, when all the authorities below have rejected the rebate claim of the petitioner by observing that the petitioner has not exported the goods of ARE-1 No. 48 dated 10/2/2009 under Shipping Bill No. 7074421, we see no reason to interfere with the same in exercise of the power under Article 226/ 227 of the Constitution of India. In the facts and circumstances narrated hereinabove, the decisions relied upon by the learned advocate appearing on behalf of the petitioner referred to hereinabove shall not be applicable to the facts of the case on hand and the same shall not be of any assistance to the petitioner.

In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. No costs.