Bombay High Court
M/S. Parle Products Pvt. Ltd vs The Union Of India And 2 Ors on 27 November, 2017
Bench: A.S. Oka
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sbw IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 644 OF 2010
WITH
WRIT PETITION NO. 2576 OF 2012
M/s. Parle Products Pvt.Ltd. ... Petitioner
vs.
The Union of India and 2 Ors. ... Respondent
Mr. M. H. Patil for the Petitioner.
Mr. Swapnil Bangur a/w. Mr. Sham V. Walve for Respondent No. 2.
CORAM : A.S. OKA & A.K. MENON , JJ.
th
RESERVED ON : 04 OCTOBER, 2017
PRONOUNCED ON : 27 NOVEMBER, 2017
th
JUDGMENT (PER A. K. MENON, J.)
1. By these Writ Petitions the petitioner seeks to impugn orders passed under
Section 35EE of the Central Excise Act 1944 by the Joint Secretary, Government of
India in Revisions Applications filed by the petitioners challenging rejection of
claims for rebate under specified notifications granting export related benefits.
For the sake of convenience, we refer to facts in Writ Petition No. 644 of 2010
impugning an Order dated 21 th August 2009 in Revision Application No.
195/692/06-RA-CX filed under section 35EE(2) of Central Excise Act, 1944 (the
"Act"). The Revision was filed against an order bearing no. Appeal No.
AT/490/RGD/2006 dated 17th August, 2006 passed by the Commissioner of
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Central Excise (Appeals).
2. The petitioners are engaged inter alia in the manufacture of biscuits,
confectionery and wheat flour falling under Chapter 11, 17 and 19 of the Central
Excise Tariff Act, 1985 at their factory situated at Vile Parle (East), Mumbai which
held central excise registration producing for home consumption as well as for
exports. Apart from manufacturing biscuits themselves, the petitioners would get
biscuits manufactured from other Contract Manufacturing Units ('CMUs') across
India in terms of Notification no 36/2001-CE(NT) dated 26 th June, 2001
("Notification 36"). The goods manufactured by the CMUs would be brought into
the petitioners factory and stuffed into containers along with goods manufactured
at their own factory and thereafter cleared for export.
3. It is the petitioners case, as canvassed by Mr. Patil learned counsel, that the
customs authorities had permitted the stuffing of goods manufactured by other
CMUs as well in their factory. It is submitted that in view of the rising transaction
costs of exports, the petitioner shifted their export activities to the premises of M/s.
Bunty Foods Pvt. Ltd.("BFPL") with effect from September, 2004. BFPL itself
manufactured biscuits and would also receive variety of biscuits and
confectionery manufactured by other units in terms of the Notification 36. It
transpires that in order to receive duty paid goods manufactured by the CMUs in
the factory of BFPL, BFPL made an application to the jurisdictional Commissioner
of Central Excise requesting permission to receive goods under rule16(3) of the
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Central Excise Rules, 2002 ('the Rules'). The letter mentioned that no processing
had been undertaken in BFPL factory and the goods brought in, were stored and
stuffed directly into the export containers. Permission was sought on the basis
that similar permission had been granted to the principal manufacturer viz, the
petitioners.
4. On or about 15th September, 2003 the Assistant Commissioner of Central
Excise declined to grant permission and thereupon BFPL is believed to have
made a detailed presentation before the Chief Commissioner of Central Excise,
Zone-I vide letter dated 24th September, 2003. On 16th February, 2004 the
Assistant Commissioner inquired of BFPL as to why they could not operate under
Rule 16 (1) and (2). BFPL vide its letter dated 25 th February 2004 contended that
they were manufacturers of biscuits as per Pune II Trade Notice No. 2/2001-para
4, identical duty paid goods are receivable in the factory of a manufacturer only
with permission of the Commissioner of Central Excise under Rule 16(3) in order
to receive duty paid Confectionery and Chocolates which were not manufactured
by BFPL in their factory for exports. BFPL would therefore not be processing the
products but only stuffing them into export containers.
5. Vide reply dated 26 th May, 2005, the Joint commissioner of Central Excise
advised BFPL to follow the procedure under Rule 16(1) and (2) of the Central
Excise Rules, 2002. BFPL started receiving biscuits and confectionery
manufactured by CMUs of the petitioner for export and upon receipt of these
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goods, BFPL would file form D-3 intimating to the Range Office who verified the
consignments which were reportedly received in original packing with duty paid
documents in the form of excise invoices. During the period September 2004 to
July, 2005 goods were cleared from the BFPL factory under76 ARE-1s on payment
of duty and in respect of which the petitioners claimed rebate. The petitioners
have reportedly filed 76 rebate claims for a total amount of duty of Rs.
25,72,908/- under rule 18 of the Central Excise Rules 2002 read with
Notification No. 41/2001-CE(NT) dated 26 th June, 2001(Notification 41) and
Notification No. 19/2004-CE(NT) dated 6 th September, 2004 (Notification 19).
6. They contended that the Central Excise Manual of Supplementary
Instructions of clause (ii) of Part I of Chapter 8 provided general permission
where co-relation of goods and duty paid character was possible. They contended
that the goods were received under duty paid excise invoices in original factory
packed condition bearing identification marks such as running package numbers
appearing on the boxes of the biscuits and confectioneries which are reflected in
the excise invoices accompanying the goods co-relating the export goods. They
contended that some of the biscuits were brought in by CMUs from their own
factories and were not manufactured at BFPL where the goods were stuffed and
exported. The goods from factory of BFPL were duty paid biscuits received under
Rule 16(1) and (2) of the Central Excise Rules, 2002 and were cleared as such
after payment of excise duty equal to credit taken and hence eligible for rebate of
duty paid.
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7. Vide order dated 26th December 2005 the Assistant Commissioner rejected
all 76 rebate claims for an amount of Rs.25,72,908/- on the basis that (i)rebate is
admissible to export only when goods are directly cleared from the place of
manufacturer as per conditions prescribed in Notification 41 and Notification 19.
(ii) letter dated 26-5-2004 from the Commissioner was not a permission under
Rule 16(3) (iii) goods were not exported directly form place of manufacture and
(iv) the letter dated 26-5-2004 from the Thane commissionerate was misused
and remarks were entered in the ARE 1s to the effect that stuffing permission had
been granted.
8. An appeal filed before the Commissioner (Appeals) was rejected vide
impugned order dated 17th August 2006 which came to be challenged in a
Revision Application before the Joint Secretary, Government of India, Ministry of
Finance under Section 35EE of the Act. The said authority also rejected the
application concluding inter alia that it was not possible to co-relate the goods
exported with the goods cleared from the factory. In other words the goods would
have to be exported from the very same factory where they were manufactured.
In both the petitions the imugned orders are founded on the principle that in
order to claim rebate,the fundamental requirement is that goods would be
exported directly from the factory of manufacture after payment of duty unless
otherwise permitted by the Central Board of Excise and Customs by a general or
special order. The good manufactured by CMUs were sent to BFPL and not
exported from CMUs' factories and therefore a violation of Notification 40.
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Further that the goods exported were not co-relatable and/or identifiable with the
goods cleared from the factory of manufacturer.
9. The petitioner's Counsel Mr. Patil has canvassed before us that the
impugned order is against provisions of law, is not sustainable since the
petitioners have been getting their goods manufactured through other CMUs
over a number of years and it is not a new practice that has been adopted. The
biscuits received at BFPL factories CMUs were duty paid and along with their
own biscuits had to be stuffed in containers at their own premises and had been
cleared for exports.
10. Mr. Patil submitted that the impugned order has been passed without
application of mind. He invited our attention to the order passed by the
Commissioner (Appeals ) at Exhibit Q to the petition and contended that the
observation in the Order that the petitioners had connived with BFPL and arrived
at modus operandi whereby payment wrongly claimed was not justified. BFPL
had obtained permission vide letter dated 26 th May, 2004 from the Commissioner
of Central Excise, Thane under rule 16(3). The Order proceeds on the basis that
no such permission had been granted and goods were not exported directly from
the factory of the manufacturer in terms of Notification No. 41. The order
further records that an adjudicating authority had observed that BFPL had
cleared the goods for exports but after reversing the amount CENVAT credit
availed. The reversal of an amount in terms of Rule 3(4) of the Cenvat Credit
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Rules 2002 was not "duty" for which rebate could be sanctioned as per
explanation (1) to Notification 41. The impugned order incorrectly holds that
BFPL had deliberately not disclosed the name of the manufacturer in the relevant
ARE to avoid detection by the Central Excise Officer.
11. According to Mr. Patil, the appellant had got excisable good manufactured
at various job workers under Rule 16(1) and (2) which were to be exported and
the same were not inputs as contemplated by Rule 3(4). Rule 16 referred to
finished goods and good received by BFPL were finished goods. Therefore, the
rejection for rebate claimed under Rule 3(4) was incorrect. Mr. Patil submitted
that the production of the biscuits were undertaken at its own factory but the
stock being meant for exports and since Cenvat Credit was taken by BFPL, by
virtue of the explanation to Rule 16, the amount of duty paid was to be allowed as
Cenvat credit and since the credit of Cenvat was taken by BFPL. The amount of
Cenvat credit debited at the time of removal of the goods was nothing but the duty
paid on the goods cleared for export under the claim of rebate. It was submitted
that the availer of the credit who utilized it for payment of duty on the goods
cleared is a deemed manufacturer. He submitted that Rule 16 permits receipt of
goods under a factory for being remade, refined or for any other reason. He
contended that the expression "for any other reason " meant that any activity
relating to the inputs or final products brought into the factory premises would
qualify for benefit and accordingly the stuffing of packages containing for biscuits
meant for export at the premises of the BFPL would qualify as an activity under
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Rule 16. He therefore submitted that the export consignment packed and stuffed
at the premises of BFPL would qualify for benefits.
12. In the course of submissions, Mr. Patil drew our attention to notification
40 and provisions of sub-clause (i) which provides for rebate of duty on export of
goods and the procedure. There is a general permission granted for any rebate
and in exercise of powers conferred by Rule 18 of the Central Excise Rule, 2001.
He submitted that the conditions attached do not provide that any of such goods
exported to countries other than Nepal and Bhutan would not qualify for such
benefits unless a special permission was obtained. That having been said, Mr. Patil
relied upon a compilation of documents containing invoices, shipping bills
supporting the claim for rebate. In the course of submissions, it was pointed out
that the conditions for availing benefits required for the goods had to be clearly
identified and the notifications in no uncertain terms made reference to goods
that were exported should be easily identifiable. After due verification of the
goods and their duty paid character, the Central Excise Officers would be
required to verify proof of payment of duty. As an example of identifiable goods
reference was made to two wheelers and the fact that each unit is marked with a
unique engine number and chassis number which would make possible to
identify goods exported and the duty paid thereon. It is submitted that the
exported packages of biscuits would also qualify as goods that were easily
identifiable.
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13. A query was put to Mr. Patil as to how the biscuits exported could be said
to be easily identifiable, in view of the fact that the biscuits do not contain any
specific number or identification mark. To this, Mr. Patil submitted that the bulk
sealed packages containing biscuits had specifically identifiable shipping numbers
and will qualify for claiming benefit of a notification. Mr. Patil further submitted
that an accepted fact that in case the exporters submitted the proof of actual
export with the satisfaction of the rebate sanctioning authority and when the
goods are clearly identifiable and co-relatable with the goods cleared from the
factory on payment of duty, the condition of exports being made directly from
the factory of manufacture should be deemed to have been waived. Making
reference to the said compilation of invoices, Mr. Patil referred to several invoices
and supporting declarations by BFPL under Rule 16 of the Central Excise Rules
and Form ARE-1's. The particulars of the invoices and declarations etc are set out
in a tabular form for ease of reference:-
Sr Excise Invoice no. Declaration no. & Form ARE-1 & Bill of lading no. Petitioner's proforma BFPL Invoice
no. & date date date & date Invoice no. & date no. & date
1 1071 03/2004-2005
03/09/2004 17/09/2004
2 4803 03/2004-2005
17/09/2004 17/09/2004 35 TALNHVDAM PPPL No.SAACL- 35
3 04924 05/2004-2005 23/09/2004 1502992 003 23/9/2004
18/10/2004 23/9/2004
23/09/2004 23/09/2004
4 1236 02/2004-2005
03/09/2004 04/09/2004
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14. Making reference to the shipping remarks contained in the relevant
invoices stipulated in the table above and the declarations and ARE-1. Mr. Patil
sought to demonstrate how the shipping marks mentioned in the invoices find
mention under the declarations under rule 16 and form ARE-1. After making
reference to these individual invoices and the shipping marks relating thereto,
Mr. Patil invited our attention to the fact that the Form ARE-1 bearing serial
number 35 dated 23rd September, 2004 and pointed out that particulars of the
manufacturers of the goods appearing on the form indicated the different
shipping marks referred to in the individual invoices referred in the table above.
The packages identified by the shipping marks were then stuffed into container
no. TTNU-191047(2) mentioned in the bill of lading.
15. The form ARE-1 was co-relatable with the invoices issued by the petitioner
and the invoice issued by BFPL which appears at page 11 of the compilation.
Form ARE-1 makes reference to the invoice numbers. The goods were consigned
to M/s. Saleh and Abdulaziz Abahsain Company whose name appeared in the
shipping bills of export, copies of which are also annexed to the compilation.
Finally, it is pointed out that the Bill of Lading issued by the shippers names the
notify party as Saleh Abdulaziz Abahsain Co. Ltd., the purchaser. In the section
pertaining to "Owners Mark/Container No./ Goods Packages Identification Marks
and Nos", the name of M/s.Saleh and Abdulaziz Abahsain Co. Ltd. was mentioned
and specific reference was made to the shipping marks appearing in each of the
invoices entabulated above. That apart, description of the contents of the
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packages is shown as Parle biscuits of various kinds. Thus, it is submitted by Mr.
Patil there can be no doubt of what was exported. In this manner, Mr. Patil
demonstrated that clearly identifiable packages were dispatched and the
petitioner was well within its right to claim benefit of the subject notification.
16. Mr. Patil further submitted that declarations executed by BFPL under rule
16 established receipt of excisable goods in packages with duly identifiable
shipping marks. He submitted that all these were conveniently co-relatable and
there can be no doubt whatsoever that their goods referred under the invoices
were the very goods that were sent to BFPL received at BFPL and stuffed into
containers are BFPL premises at Ambernath. He submitted that the declarations
by BFPL clearly set out the fact that Commissioner of Central Excise had given
permission for export clearance on 26 th May, 2004 and accordingly goods were
cleared and export. He submitted that even otherwise a general permission was
always there in order to export the goods and as such there cannot be any doubt
in a genuineness of the transaction. In support of his contentions Mr. Patil relied
upon the judgments of this Court in (Commissioner of Central Excise, Raigad v/s.
Micro Inks Ltd. 2011 (270) E.L.T. 360 (Bom.). He also relied upon a judgment of
the Madras High Court in the case of Ford India Pvt.Ltd. v/s. Assistant
Commissioner of Central Excise, Chennai. He submitted that technicalities in
following statutory procedure would be cut down especially technicalities which
are not essential for fulfillment of the legislative purpose. He relied upon the
decision of this Court in Madhav Steel and another v/s. Union of India & Ors.
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2010 TIOL 575 HC-MUM-CX wherein the Court relied upon the observations of
the Supreme Court in the case of Mangalore Chemicals and Fertilizers Limited
v/s. Deputy Commissioner reported in 1991 (55) ELT 437 which held that the
technicalities attendant upon a statutory procedure should be cut down where
they are not necessary for fulfillment of legislative purpose. Reference is also
made to the case of Formika India v/s. Collector of Central Excise reported in
1995 (77) ELT 511. It is submitted that benefit should not be denied on technical
grounds. In this manner Mr. Patil submitted that the impugned order is bad in
law and calls for interference by this Court.
17. Mr. Bangur, the learned counsel appearing on behalf of the second
respondent submitted that the case of the petitioner is devoid of merits and the
order of the Revisional Authority deserves to be upheld. Mr. Bangur submitted
that the petitioner avails of services of 45 CMU registered under the Act and
description on behalf of the petitioner under notification no.36. The petitioners
were engaged in bringing duty paid goods from the CMUs to the petitioners own
Vile Parle factory and would export them after receiving appropriate permission
from the Commissioner of Central Excise for bringing the duty paid goods. This
process continued till 2004 and thereafter it appears that they shifted their export
activities to the premises of BFPL at Ambernath and filed 41 rebate applications.
The requirement of law is that the goods were to be exported directly from the
factory of manufacturer as contemplated in notification no.40 and in the instant
case the finished goods were brought from various manufacturers and CENVAT
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credit was availed by BFPL and the finished goods were then cleared for export
from BFPL. He submitted that the petitioner had not fulfilled the conditions laid
down in the notification no.19/2004-CE(NT) as amended since they failed to
export the goods directly from the factory of manufacturer and did not observe
procedure in Circular no.294/10/1997-CX. In view of the same, the petitioner
was issued show cause notice on 27th December, 2007 to which the petitioner
replied to the Assistant Commissioner rejected the rebate claim since the excisable
goods were not exported directly from the factory of the manufacturer which is a
condition precedent as per notification no.19/2004 and the board circulars
referred to above. If the export was not to effected from the factory of the
manufacture it could only be done after obtaining permission from the Central
Board of Excise and Customs ('CBEC' ). In the instant case, the petitioner had not
obtained such permission. It is submitted that these goods were being exported
from BFPL premises without any process being carried out after reversal of the
CENVAT credit so availed and although prescribed in Rule 16(1) and (2) of the
Rules. The Chief Commissioner of Central Excise found that no process had been
carried out and there was a case of irregular availing of Cenvat credit. Since the
BFPL was bringing the finished goods from other manufacturers on payment of
duty, availing of credit and reversing the amount of credit on exporting the
finished goods received from other manufacturers and therefore the benefit of
the rebate cannot be availed of.
18. Mr. Bangur further submitted that although the biscuits were received
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from the CMUs at the premises of BFPL and their excise numbers have mentioned
in form ARE-1 but the rebate could not be claimed. There was no process carried
out on the goods despite the benefit was being claimed. Furthermore, there was
no permission for stuffing goods into containers at the premises of the BFPL. The
process of stuffing finished goods did not fall under Rule 16(1) and 16(2) and
notification no.19 would require the goods liable to be exported directly from the
place of the manufacturer i.e. CMUs. That having not been done,it was not
possible to accept the petitioners to claim the benefit.
19. Mr. Bangur submitted that the goods exported were not clearly identified
and for that reason the benefit of the notification could not be claimed. He
submitted that the impugned order of the Commissioner (Appeals) clearly
recorded that the petitioners have wrongly claimed having obtained permission
and in fact no permission was granted. Although the petitioner had claimed that
the goods which were cleared from the factory of the CMUs were the very same
goods which are exported and the petitioner had sought to rely upon the
documents showing linkage from point of clearance of the goods upon
manufacturer and up to the point of scope,the facts are quite different and the
petitioners had no permission to export the same from BFPL premises. Mr.
Bangur reiterated that there is nothing to clearly identify the goods as the same.
20. In this respect we must mention that Mr. Patil had pointed out that the
goods were sealed in packages and thereafter the packages were not open opened
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or altered. For this reason, he had relied upon the shipping marks upon the
packages and as reflected in the invoices declarations form A.R.E.1 and the
shipping Bill of Lading. We have no doubt in our mind that having heard the
petitioner on this aspect that the goods were clearly identifiable from the moment
of issuance of invoices, filing of the declarations, declaration form ARE-1 and till
handing over the consignment for export to the ocean line and as reflected on the
Bill of Lading. We do not find any infirmity on that aspect of the matter and for
that reason Mr. Bangur contention that the goods were not clearly identifiable
and therefore not entitled to benefit of the notification cannot be accepted.
21. In the course of submissions, we had called upon Mr. Patil to show us the
permission has been granted under Rule 16(3). In this respect, he submitted that
the permission had been granted vide letter dated 26 th May, 2004. He invited our
attention to Exhibit J to the petition which is a communication from the
Commissioner of Central Excise to BFPL. He contended that this was a permission
granted for stuffing of container those and which was referred to in the
declaration in the remarks column. For ease of reference the contents of the said
letter purporting to be the permission is reproduced below:-
---------------------------------
"I am directed to your letter dated 4.3.2004 on the above subject.
In this connection reference is invited to the discussions held
with you on 5.4.2004 when it was clarified that unless the
difficulties in observing the provisions of Rule 16(1) and (2) were
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established, there was no case for granting permission by
Commissioner under Rule 16(3). No difficulties were pointed out
by you during the discussions and also in your letter dated
25.2.2004. Accordingly you were advised to follow the provisions
of Rule 16(1) and (2).
Since no difficulties in following Rule 16(1) and (2) have
been reported the question of seeking the permission of the
Commissioner under Rule 16(3) should not arise.
You may therefore follow the procedure as specified in Rule 16(1)
(2) of Central Excise Rules, 2002."
------------------------------------
22. Perusal of this letter is reveals that in response to the prior correspondence
attention of the BFPL was invited to discussions held on 5 th April, 2004 when the
Commissioner had apparently clarified that unless difficulties in observing the
provisions of Rule 16(1) and (2) were established, no case had been made out for
granting permission by Commissioner under Rule 16(3). During discussions, it
was apparent that no difficulties were pointed out. Furthermore, in an earlier
communication dated 25th February, 2004 BFPL was advised to follow the
provisions of Rule 16(1) and (2) and since there was no difficulties in following
Rule 16(1) and (2) the question of seeking the permission of the Commissioner
under Rule 16(3) did not arise.
23. The Commissioner had therefore directed BFPL to follow the procedure
specified in Rule 16(1) and (2). Reference to the communication dated 25 th
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February, 2004 issued by BFPL (Exhibit I) reveals that BFPL had admitted to
manufacture of generically identical "biscuits" as those received in its factory
from CMUs. These could be exported with attendant benefits only with
permission from the Commissioner under Rule 16(3). Trade Notice No.2/2001
reveals that Rule 16(1) and (2) may not apply for receiving duty paid biscuits in
the factory for export of confectioneries and chocolates, since BFPL had not
manufactured these products. In this behalf reference to the Trade Notice -duty
paid goods in a factory, copy of which attached to Exhibit I, reveals that a factory
cannot receive goods for export from outside which are identical to those
manufactured by assessee without proper permission from the Commissioner.
24. Mr. Patil submits that in Writ Petition 2576 of 2012, the facts are
identical. Vide order dated 26 th December 2005 the Assistant Commissioner
rejected all 76 rebate claims for an amount of Rs.25,72,908/- on the basis that
rebate is admissible to export only when goods are directly cleared from the place
of manufacturer as per condition prescribed in Notification 41 and Notification
19. Secondly, the biscuits received at BFPL were exported but without any
process being carried out and after reversal of CENVAT vide as per procedure
prescribed in Rule 16 (1) and (2) of the Rules. Thirdly, the amount reversed
under Rule 16(2) was not in the form of duty and not eligible for rebate under
Rule 18 of the Central Excise Rules, 2002 and generally that the provision of Rule
18 of the Rules were not followed. Reliance is placed on the very same letter
dated 26th May 2004.
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25. A fair reading of the letter reveals that it is in fact a denial of permission. It
records in unequivocal terms that during discussions no difficulties were pointed
out by BFPL in following the provisions of rules 16(1) and (2) and since no
difficulties in following rules 16(1) and (2), the question of seeking permission of
the Commissioner under rule 16(3) should not arise. There was a clear direction
in the letter to follow procedure as specified under Rule 16(1) and (2) of Central
Excise Rules, 2002. In the circumstances, we are of the view that the contention
of Mr. Patil to the effect that the authorities of Commissioner had given
permission is devoid of merit. In our view in both these matters there was no
permission given for bringing goods to the factory of BFPL and for stuffing them
in the containers. Since the products have not been manufactured by BFPL there
was no occasion to export them. In the circumstances, the contention that the
permission granted was in the nature of a misrepresentation and an attempt to
mislead the authorities and this Court.
26. For the aforesaid reasons, we are of the view that the impugned orders
cannot be faulted with, they call for no interference. Accordingly, I pass the
following order:-
(i) Writ Petitions are dismissed.
(ii) Petitioner shall pay costs of Rs.10,000/- each in each of the above matters.
(A. K. MENON, J.) (A. S. OKA, J.)
