Customs, Excise and Gold Tribunal - Mumbai
Buckau Wolf India Ltd. vs Collector Of Central Excise And Customs on 21 March, 1991
Equivalent citations: 1991ECR117(TRI.-MUMBAI), 1992(58)ELT338(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. Both the appeals are directed against the Order-in-Appeal bearing No. M-385-356/AHD-129-130/86 dated 3-12-1986 passed by the Collector of Customs (Appeals) confirming the Order-in-Original No. 1/1983 [F. No. V-68 (18-16) 82/Rebate dated 15-4-1983] and 68/2/83 [File No. V-68 (18-32) 81/Rebate/2531 dated 15-4-1983] passed by the Assistant Collector of Central Excise, Divn. IV, Ahmedabad rejecting the appellants' claims for refund on the ground that original AR 4 No. 5 dated 27-7-1981 and AR 4 No. 23 dated 24-2-1981 were not received by them and the appellants had failed to produce the same.
2. The appellants herein have exported the excisable goods to Bangladesh and have claimed refund of duty admissible to them under the cover of AR 4 No. 5 dated 27-7-1981 and AR 4 No. 23 dated 24-2-1981. The goods were actually manufactured by M/s. S.L. Maneklal Industries Ltd., who had given no objection certificate to the present appellants for claiming the rebate of duty. When the claims were entertained by the authorities below, they did not have the original AR 4s and therefore the claims were rejected as unsubstantiated.
3. Shri S. Narayanan, the Authorised Representative of the appellants submitted that the duty to send the original AR4s lies on the department, as is contemplated under Rule 189 of the Central Excise Rules and because the authorities at the Border having failed to comply with the same, the party should not be penalised for the same. He also drew my attention to a letter written by the Excise Officer at Radhikapur addressed to the Assistant Collector of Central Excise, Calcutta saying that AR4 No. 5 was sent to them and requesting them to send the same at the concerned office with the copy thereof endorsed to the Ahmedabad Collectorate and pleaded that therefore the adjudicating authority was not justified in rejecting the claims on the ground that AR4s were not submitted alongwith the claims.
4. Shri B.P. Singh, the Ld. JDR, however supported the order and pleaded that the claims for rebate were to be established duly supported by the original AR 4s. The claims for refund are to be conclusively proved by adducing proper evidence to show that the exports have already taken place and it was therefore their duty to see that the original AR 4s were properly sent to the concerned office.
5. From the orders passed by the authorities below, it appears that the claims had been rejected only for non-production of AR 4s form for the concerned consignment. From the record it also appears that the original AR 4s were submitted before the Radhikapur excise office and when the same were, instead of being sent to Ahmedabad, were sent to Calcutta and a request was also made to resend the same to Ahmedabad. The copies of the said letters were also sent to Ahmedabad Collectorate. It is not clear whether the said letter was received by the Ahmedabad Collectorate on or before the day when the order came to be passed. I, therefore, do not attribute any mala fide to the officer concerned. At the same time, however, the fact remains that the original AR 4s were in the custody of the department elsewhere and were in the process of being transmitted to the office at Ahmedabad and in that case, the Collector (Appeals) ought to have examined this aspect or remanded the matter for re-examination. Rule 186 of the Rules also contemplates that AR 4 form should be sent by one office to other office directly.
6. Considering the evidence now available on records, it appears that the AR 4 forms must have been received by the Ahmedabad office. The orders are therefore set aside and the matters are remanded back to the Assistant Collector for examining the claims on merits by verifying the same from the original AR 4 forms received by them from the concerned excise office. It is also directed that this being the correspondences between the two departments the adjudicating authority, through appropriate channel, may also make reasonable efforts to procure the original AR 4 forms.
7. With this direction the appeals are allowed by way of remand.