1 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 519 OF 2008 Union of India .. Petitioner Versus Farheen Texturisers and others .. Respondents Mr. J. B. Mishra for the petitioner Mr. F. Razak a/w Mr. Nitin Dhumal for Respondent no.1 CORAM: V. C. DAGA, & S. J. KATHAWALLA, JJ. DATED: 7 th July, 2010 P. C. 1. Heard learned Advocate for the petitioner and the learned counsel for the respondent. Perused Writ Petition. 2. This Writ Petition filed under Article 226 of the Constitution of India is directed against the order dated 22.1.2007 passed by the Joint Secretary to Government of India (Appellate Authority) under section 35 EE of the Central excise Act, 1944 (the Act) confirming the Order- in- Appeal dated 21.6.2006, passed by Commissioner of Central Excise (Appeals) Mumbai, whereby and whereunder, the Order in Original dated 17 th March, 2006 passed by the Assistant Commissioner (Rebate) Central excise, Raigad was set aside. 2 Factual Matrix: 3. Factual matrix reveals that the Respondent No.1 preferred two Rebate Claims involving an amount of Rs.17.55 lacs for the goods exported by them from the Port at Nhava Sheva. The said Rebate Claims were rejected by an order dated 17.3.2006 by the Assistant Commissioner (Rebate) Central Excise, Raigad holding that the reversed of CENVAT credit cannot be teated as payment of duty eligible for rebate and that the subject machinery was not exported from the factory/warehouse of the manufacturer. It was further held that since the machinery had been in use for 7 years from the date of purchase, from 17.10.1997 the said rebate claim was not admissible against export of the capital goods which were used. It was further held that ARE-1 was not signed by the manufacturer of the said machinery and that it was barred by limitation. 4. Aggrieved with the aforesaid Order-in-Original, dated 17.3.2006, the respondent No.1 preferred an appeal before the Commissioner (Appeals) which was allowed by the Commissioner (Appeals) vide its order dated 21.6.2006, with consequential reliefs. 5. The petitioner- Revenue, not being satisfied with the aforesaid order, invoked revisional jurisdiction of the Government of India (Respondent No. 2 herein) contending that the CENVAT credit, reversed at the time of export of Capital Goods, could not have been treated as 3 payment of duty so as to enable the exporter to claim rebate, apart from the fact that the export of the machine was not from the factory of manufacturer or its warehouse. The said revision preferred by the Revenue was rejected by the Revisional Authority relying on Sub Rule 6 of Rule-3 of CENVAT Credit Rules, 2004 and upheld rebate claims. 6. Being aggrieved by the aforesaid order of the Revisional Authority, the Revenue has invoked Writ jurisdiction of this Court. Submissions: 7. Mr. Mishra, the learned counsel appearing for the Revenue raised sole contention that ARE-1 was not signed by the manufacturer of the said machinery, as such the application made by the respondent- exporter was not tenable. He, thus, submits that the said defect went to the root of the maintainability of the rebate claims. He therefore, submits that the rebate claims were rightly rejected by the Assistant Commissioner (Rebate), Central Excise, Raigad by his order dated 17.3.2006. He further submits that both the authorities, namely the Appellate Authority and Revisional Authority did not consider the necessity of signing ARE-1 by manufacturer of the said machinery. He, therefore, submits that the impugned orders granting rebate are liable to be quashed and set aside. Per contra: 8. The learned counsel appearing for the respondent submits that 4 so far as payment of duty is concerned, CENVAT credit was availed by them when the said machinery was purchased in the year 1997 from one M/s Lakshmi Synthetics Machinery Manufacturers Ltd. However, after using it for seven years, it was sold to a foreign buyer. It was exported. The CENVAT credit was actually paid by the respondent by depositing amount of duty. The subject machine was exported after payment of duty. The export was complete. The rebate claims were thus rightly preferred by respondent No. 1, which were rightly allowed firstly by the Appellate Authority and subsequently affirmed by the Revisional Authority. The learned Advocate further submits that the export was made by the respondent as per import export rules and have cleared the goods as per ARE-1. He submits that, it is no doubt true that, ARE-1 ought to have been signed by the manufacturer of the said machinery. However, this lapse can hardly be said to be so serious so as to deny the rebate claims. He submits that the said lapse is nothing but a technical lapse which needs to be ignored. In support of his submission, he relied upon the judgment of Apex Court in the case of Suksha International Vs. Union of India, 1989 (39) ELT 503 (S.C.); wherein the Hon’ble Supreme Court observed that interpretation unduly restricting the scope of beneficial provision should be avoided so that it may not take away with one hand what the policy gives with the other. He also pressed into service another judgment of the Apex Court in the case of Union of India Vs. A.V. Narasimhalu 1983 (13) 1534 (SC), wherein the Apex Court ruled that administrative authorities should instead of relying on technicalities, act in a manner consistent with the 5 broader concept of justice. Similar observations are to be found in the case of Formika India Vs. Collector of Central Excise, 1995 (77) E.L.T. 511 (SC), wherein the Apex Court observed that once a view is taken that a party would have been entitled to the benefit of the Notification, had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so had elapsed. Conclusion: 9. Having heard rival parties one thing is clear that in the instant case, exporter-respondent has exported the machine on which the duty has already been paid by them and it was accepted by the Revenue. Under the circumstances, mere technical lapse on the part of the respondent No.1 in not obtaining signature of the manufacturer on ARE-1 cannot result in refusing them the benefit of the rebate claims set- up by them, which has now been granted to them by the Commissioner (Appeals) and confirmed by the Revisional Authority. Both the authorities below upheld right of the respondents in this behalf. Under the circumstances, the petition filed by the Revenue challenging the order of Revisional Authority (Govt. of India), is without any substance and the same is, thus, liable to be dismissed. 10. In the above view of the matter, the petition stands dismissed. Rule is discharged with no order as to costs. ( S. J. KATHAWALLA, J.) (V. C. DAGA, J.)