IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.10697 of 2010 Date of decision: 20.1.2011 M/s Munish International. -----Petitioner. Vs. Union of India & another. -----Respondents. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Jagmohan Bansal, Advocate with Mr. Vishav Bharti, Advocate for the petitioner. Mr. H.P.S. Ghuman, Advocate for the respondents. --- ADARSH KUMAR GOEL, J. 1. This petition seeks quashing of order dated 13.4.2010 passed by the Central Government as revisional authority under the provisions of the Central Excise Act, 1944 (for short, “the Act”). 2. Case of the petitioner is that it purchased certain consignments from Ludhiana and exported the same. On that basis, it applied for rebate claim. The Commissioner of Central Excise, Ludhiana issued a notice to the petitioner alleging that it had not exported the goods, requiring it to show as to why the rebate claim should not be rejected under Rule 18 of the Central Excise Rules, 2002 read with Section 11B of the Act. Stand of the petitioner was that the rebate claim was C.W.P. No.10697 of 2011 genuine as the exports were actually made, which were duly certified by the department. Plea of the petitioner was rejected and vide Order-in-Original dated 30.11.2006, it was held that the goods were not actually exported. On appeal, the said finding was set aside by the Commissioner (Appeals) with the following observations:- “..... However, it cannot be inferred from the said facts that the goods mentioned on the ARE-I 00,339 dated 28.2.2006 were not exported vide shipping Bill no.4951 dated 8.3.2006 as alleged by the department especially when both the said documents describe the goods as P-24 & P-25 and the shipping bill only further detailed the goods. In this regard, it is also noted that there is certification by the Customs Officer in the Part B of the said ARE-I which shows that the said goods were exported vide the shipping bill no.4951 dated 8.8.2006. Further, the appellants have pleaded that they were maintaining their daily stock account of P-25 & P-25 as hooks and that the incomplete description is, however, due to the clerical mistake which is acceptable in view of the above discussion on the basic facts. As a result, it is conclusive that variation in description of the goods on the document does not proof that the goods mentioned on ARE-I were exported vide the above mentioned Shipping bill and there is no other evidence to substantiate the allegation against appellants; therefore, the rejection of the rebate on this ground does not sustain. Further, it is noticed that the facts of the case pertaining to Order-in-Appeal no.51/CE/Ldh/2006 2 C.W.P. No.10697 of 2011 dated 29.9.2006 referred to by the adjudicating authority are distinguishable from the facts of the present inasmuch as the appellants. In that case, procured ‘Brass Billets’ by the appellants (as merchant exporter) from the manufacturer as mentioned on the ARE-1 and exported ‘Ingots’ as per the Shipping Bill filed by the appellants at the export and it was established that brass billets and ingots are two different items with different physical characteristics and different identity in common market parlance and also that the appellants failed to explain the difference ill description of goods on the said export documents. Whereas, in the instant case, the variation of the description of the goods on the documents does not show that the said goods are different and the said variation has been explained by the appellants. It is evident from the facts of the case that the department has not made any conclusion about the goods cleared by the manufacturer from the description of the goods given on the ARE-I and instead concluded that the heading 73.08 does not cover P-25 & P-25. The conclusion of the adjudicating authority that the goods “P-25 & P-25” are not excisable being not covered under chapter heading 73.08 is not justified in view of the facts that detailed description of the goods have been given on the Shipping Bill. This conclusion of the department also contrary to facts as the manufacturers are also maintaining daily stock accounts of P-25 & P-25 as hooks as per copy of the said account produced by the appellants. It is observed that under the similar circumstances and facts, it has been held by the 3 C.W.P. No.10697 of 2011 Government of India in RE: Cotfab Exports 2006(205) ELT 1027 (GOI) that Export –Rebate – Discrepancies in particulars in documents – Goods held as not exported and excise duty demanded – Quality of goods, marks and numbers common in all documents – Export clearance verified by Range Superintendent – Endorsement in AR 4 as to goods shipped under Customs Supervision – Contention of applicant that blended fabrics exported but description inadvertently noted as 100% polyester printed fabrics accepted – Procedural infractions to be condoned if exports had taken place. Fundamental requirement for rebate is manufacture and export – Broad description tally with invoices, ARE 1 and shipping bills as also with other collateral evidences like purchase order and hank realization certificate – Demand not enforceable merely on account of difference in description in AR4s and shipping bills Impugned order seeking duty on export goods set aside- Section 11A of Central Excise Act, 1944 – Rule 18 of Central Excise Rules, 2002. [paras 2.4, 5.1, 5.2, 5.3, 6, 7, 8, 9] In the above referred case, it has been concluded that in view of collateral evidences, goods cannot be held not exported merely on account of difference in description mentioned on AR.4’s/shipping bill. The goods in question were held exported on the grounds that quantity of goods, marks 4 C.W.P. No.10697 of 2011 and numbers are common in all documents and that Endorsement in AR 4 as to goods shipped under Customs supervision. The Government in the said case, in view of the collateral evidences, has also accepted the contention of the appellants that the discrepancies in particulars in documents were clerical mistake occurred inadvertently. It is, therefore, evident that the ratio of the above decision is applicable to the instant case as facts are similar inasmuch as the appellants in the instant case has also contented that the variation in the export documents occurred due to clerical mistake and there is no difference in the Gross weight and the Net weight of the goods mentioned on the said documents. Further, there is certification by the Customs Officer all the said ARE-1 which showed that the said goods were exported vide the shipping bill as claimed by the appellants. Thus, the rejection of the rebate claim on the basis of above grounds does not sustain. Accordingly, rejection of subject rebate claim vide the impugned order is set aside.” 3. On department’s revision before the Central Government, the finding of the Commissioner (Appeals) was set aside. 4. We have heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner submits that even though there may be some discrepancies in the description of the particulars, in the face of certification by the Custom Officer, it 5 C.W.P. No.10697 of 2011 could not be held that the petitioner had not exported the goods and finding of the Commissioner (Appeals) to this effect has been set aside without dealing with reasons given by the said authority. 6. Since learned counsel for the respondents is not able to show any discussion in the impugned order dealing with reasons given by the Commissioner (Appeals), the order of the revisional authority cannot be sustained. The revisional authority has assumed that the petitioner had not exported the goods without considering the certification by the Custom Officer as found by the Commissioner (Appeals) as above. 7. Accordingly, we allow this petition and quash the impugned order and direct the revisional authority to pass a fresh order in accordance with law. The parties may appear before the revisional authority for further proceedings on 28.3.2011. (ADARSH KUMAR GOEL) JUDGE January 20, 2011 ( AJAY KUMAR MITTAL ) ashwani JUDGE 6