[Cites 5, Cited by 0]
Gujarat High Court
Ashland India Private Limited vs Union Of India on 20 February, 2026
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/12738/2024 JUDGMENT DATED: 20/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12738 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
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Approved for Reporting Yes No
✔
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ASHLAND INDIA PRIVATE LIMITED & ANR.
Versus
UNION OF INDIA & ORS.
=============================================
Appearance:
MS AMRITA M. THAKORE, ADVOCATE for
MR BHAVESH B CHOKSHI(3109) for the Petitioner(s) No. 1,2
MS HARDIKA VYAS(11450) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 20/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE. Learned Senior Standing Counsel Ms.Hardika Vyas
waives service of notice of Rule on behalf of the respondents.
2. Since the issue involved in the present writ petition is
short, the same is taken up for hearing and is being decided by
this judgment.
3. The petitioners have assailed the order dated 28.09.2023
passed by the respondent No.1. Further, a prayer is made for
issuance of a direction to the respondents to sanction the
rebate claim of Rs.1,29,92,156/- in terms of Rule 18 of the
Central Excise Rules, 2002 (in short, "the Rules, 2002").
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BRIEF FACTS : -
4. To secure rebate benefits, as contemplated under Rule
18 of the Rules, 2002, the petitioner No.1 being a merchant-
exporter, filed a claim before the office of the respondent No.3
for an amount of Rs.1,32,92,598/- on 29.12.2017 (the "Original
Claim"). However, on the same day, the respondent No.3, vide
letter bearing reference F.No.CGST/Anjar-Bhachau/REF-REB/17-
18 dated 29.12.2017 (the "Rejection Letter"), returned the
application along with the accompanying documents.
5. The Rejection Letter merely mentions that the petitioner
No.1 had failed to comply with the conditions and procedures
specified in Paragraph No.3(b)(i) of Notification No.19/2004.
Being uncertain about the alleged non-compliance and the
basis of rejection, the petitioner No.1 re-submitted its claim on
26.06.2018 before the office of the respondent No.3 (the "Re-
filed Claim"). In the interregnum, the Finance Team of the
petitioner No.1 had relocated from its Mumbai office to
Hyderabad. During the course of such relocation, the original
and duplicate copies of the ARE-1 forms were inadvertently
misplaced.
6. Thereafter, the respondent No.3 adjudicated the re-filed
claim by passing an Order-in-Original bearing reference
"Rebate Order No.05/Rebate/2018-19" dated 28.09.2018
partly in favour of the petitioner. Subsequently, the
Commissioner, CGST, Kachchh, Gandhidham formed an opinion
that the Order-in-Original was not legal and proper and was
liable to be set aside. Accordingly, the said Commissioner
exercised the powers of review vested under Section 35E(2) of
the Central Excise Act, 1944 (in short, "the Act, 1944") and
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passed a Review Order No.04/OIO/18-19 dated 26.12.2018,
authorizing the incumbent Assistant Commissioner, CGST,
Anjar-Bhachau Division, Gandhidham to prefer an appeal
against the Order-in-Original. The appeal preferred by the
Revenue was filed before the respondent No.2 and culminated
in the issuance of the Order-in-Appeal bearing No.KCH-EXCUS-
000-APP-059-2020 dated 03.07.2020.
7. Aggrieved by the said Order-in-Appeal, the petitioner
No.1 preferred a Revision Application under Section 35EE of
the Act, 1944, before the respondent No.1. Thereafter, the
respondent No.1 passed the impugned order dated 28.09.2023
rejecting the Revision Application filed by the petitioner No.1.
Hence, the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONERS :-
8. Learned advocate Ms.Amrita Thakore, appearing for
learned advocate Mr.Bhavesh Chokshi for the petitioners, at
the outset, has submitted that the competent officer i.e. the
Assistant Commissioner, Kachchh, Gandhidham, ought not to
have returned the rebate claim filed vide application dated
29.12.2017, in view of the provisions of the CBEC Manual (Old),
particularly Chapter 8, which governs rebate claims on
exports. In this regard, she has placed reliance on Part-IV
thereof and has submitted that the competent officer ought to
have pointed out the deficiencies to the petitioners before
returning the rebate claim. In support of her submissions,
reliance is placed on the judgment of this Court in the case of
United Phosphorus Limited Vs. Union of India, 2005 (184) E.L.T.
240 (Guj.).
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9. The second ground, which has been raised by learned
advocate Ms.Thakore, is that the Appellate Authority has fell in
error in setting aside the order in original dated 25.09.2018 by
holding that the rebate claim could not have been approved by
the Assistant Commissioner by passing the order dated
25.09.2018, more particularly in wake of the facts that the
petitioner No.1 did not submit the original documents and in
fact submitted duplicates and triplicates, which is in
contravention of the Paragraph 3(b)(i) of the Notification dated
06.09.2004. It is contended that the view expressed by the
Appellate authority and confirmed by the Revisional authority
is in direct conflict with the decision of the Division Bench of
this Court vide judgment dated 12.06.2013 passed in Special
Civil Application No.17481 of 2012 and allied matter. It is
submitted that the respondents have not doubted the claim of
rebate and the same is supported by other documents, which
establish such claim. It is submitted that the competent
authority, while passing the order in original has taken care of
these aspects and has also dealt with the provision of
Paragraph No.3(b)(i) of the Notification, however, the Appellate
Authority has reversed such findings, which run contrary to the
judgment of this Court.
10. The third ground, which has been urged by learned
advocate Ms.Thakore is relating to the limitation, on which the
order in original has been set aside by the Appellate Authority
and further confirmed in revision. She has submitted that
initially an application was filed on 29.12.2017, which was
returned by the respondents, and hence, after gathering the
documents, again the petitioner No.1 filed the rebate claim on
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26.06.2018, which has been subsequently allowed by the
competent authority by passing the order in original. However,
the Appellate Authorities on the ground of limitation by
counting the same from 26.06.2018 instead of 29.12.2017 has
rejected the rebate claim on the ground that the same is
barred by limitation in terms of Section 11(B) of the Act, 1944.
It is submitted that the Appellate Authorities fell in error in
counting the limitation from 26.06.2018 instead of 29.12.2017.
11. In support of her submissions, she has placed reliance on
the judgment of the Coordinate Bench of this Court in case of
Apar Industries Vs. Union of India (passed in Special Civil
Application No.7815/2014). It is submitted that having
returned the application claiming rebate and on the ground of
technicalities, the subsequent rebate application after removal
of defects would always relate back to the original filing. Thus,
it is urged that the writ petition may be allowed by setting
aside the impugned order.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS :-
12. Opposing the aforesaid submissions advanced by learned
advocate Ms.Thakore, learned Senior Standing Counsel
Ms.Hardika Vyas has submitted that the impugned order does
not warrant any interference, as the same has been passed in
accordance with law. She has further submitted that the Order-
in-Original sanctioning rebate of Rs.1,29,92,156/- is erroneous
and contrary to Paragraph 3(b)(i) of the Notification dated
06.09.2004. It is contended that while filing the rebate
application on 29.12.2017, the petitioner No.1 had failed to
produce the original documents. In this regard, reliance is
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placed on Chapter 9 of the CBEC Manual (Old), particularly
Paragraph No.2.4 thereof. It is further submitted that once the
rebate claim was returned, it was open to the petitioners to
immediately re-file the same. However, the petitioners re-filed
the claim belatedly, attributing the delay to the shifting of its
office from Mumbai to Hyderabad and the consequent loss of
the original and duplicate copies of ARE-1. It is urged that such
inaction on the part of the petitioners cannot enure to its
benefit. Thus, it is contended that the rebate application could
not have been entertained or sanctioned on two grounds; first,
that the original application was filed without the requisite
original documents; and second, that the subsequent
application was filed beyond the prescribed period of limitation
of one year. By placing reliance upon Paragraph 3(b)(i) of the
Notification dated 06.09.2004, it is submitted that the
Appellate Authority as well as the Revisional Authority have
rightly recorded that the petitioner No.1 failed to comply with
the mandatory requirements of the said provision and hence,
the same is correctly set aside sanctioning the rebate.
ANALYSIS AND CONCLUSION :-
13. We have heard the learned advocates appearing for the
parties, at length.
14. At the outset, it is evident from the pleadings as well as
the material on record that the respondents do not dispute the
substantive claim of the petitioners for rebate. The claim has
been rejected purely on technical grounds.
15. Initially, the petitioners filed the rebate application on
29.12.2017. A bare perusal of the rebate claim dated
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29.12.2017 indicates that the petitioner no.1 had produced the
relevant documents, namely: the application in Form C; a copy
of the annexure containing the calculation sheet; original and
duplicate copies of ARE-1 duly certified by the Customs
authorities; and a duplicate copy of the excise invoices.
Despite the same, the application was returned on the very
same day, i.e. 29.12.2017, by the Assistant Commissioner,
Kachchh, Gandhidham, assigning the sole reason that the
petitioners had failed to comply with the conditions and
procedures prescribed under paragraph 3(b)(i) of Notification
No. 19/2004-Central Excise.
16. No particulars were furnished as to the exact deficiency
in the rebate application, except for a general reference to
paragraph 3(b)(i) of the said Notification. Paragraph 3(b)(i) of
the Notification dated 06.09.2004 reads as under:-
"3. (b) (i) Claim of the rebate of duty paid on all excisable goods
shall be lodged [before the expiry of the period specified in section
11B of Central Excise Act, 1944(1 of 1944)) along with original copy
of the application to the Assistant Commissioner of Central Excise or
the Deputy Commissioner of Central Excise having jurisdiction over
the factory of manufacture or warehouse or as the case may be, the
Maritime Commissioner,"
17. A plain reading of Paragraph 3(b)(i) of the Notification
indicates that a claim for rebate of duty paid on excisable
goods is required to be lodged before the expiry of the period
specified under Section 11B of the Act, 1944, along with the
original copy of the application before the competent
authority.
18. From the affidavit on record, the submissions advanced
before this Court, and the findings recorded in the appellate
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order, it emerges that the rebate application was returned on
the ground that the petitioner no.1 had filed duplicate copies
of ARE-1 on the basis of quadruplicate copies and had stated
that the original ARE-1 forms were lost during the shifting of its
office from Mumbai to Hyderabad.
19. The competent authority, while passing the Order-in-
Original, examined the rebate claim in detail, referring to the
ARE-1 invoices, the amount of duty paid, assessable value,
shipping bill numbers, FOB value, country of destination, and
date of export. These particulars have not been doubted either
by the Appellate Authority or by the Revisional Authority. The
Order-in-Original records a threadbare examination of the
documentary evidence. Upon such examination, the Assistant
Commissioner, CGST Division, Anjar-Bhachau, vide order
dated 25.09.2018, recorded that the petitioner No.1 had
submitted quadruplicate copies of the relevant ARE-1 forms
along with self-attested copies of invoices issued under Rule 11
of the Rules, 2002. It was further held that the goods were
exported directly from the factory within six months from
clearance and that the rebate claim was filed within one year
from the date of entry of goods into the Andhra Pradesh
Special Economic Zone at Atchutapuram (APSEZ),
Visakhapatnam. Accordingly, it was categorically held that the
claim was not barred by limitation under Section 11B of the
Act, 1944.
20. The competent authority further observed that the
duplicate copies of ARE-1 had not been received from the
Customs authorities and that, as per the indemnity bond
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submitted by the claimant, the original and duplicate copies
had been misplaced in transit. In lieu thereof, the claimant
submitted quadruplicate copies along with an indemnity bond.
It was also recorded that the triplicate copies of ARE-1 were
received from the jurisdictional Range Superintendent, duly
certified and signed, and that the Range Officer had verified
the rebate claim as well as the particulars of duty payment
through the CENVAT Credit account in respect of the exported
goods.
21. Upon such detailed examination, the Assistant
Commissioner sanctioned rebate of Rs.1,29,92,156/- and
rejected rebate of Rs.3,04,442/- pertaining to ARE-1 No.180
dated 06.02.2017, ARE-1 No.183 dated 10.02.2017, and ARE-1
No.195 dated 28.02.2018.
22. The Appellate Authority set aside the Order-in-Original on
two grounds: first, that the petitioner No.1 had not produced
the original ARE-1 documents; and second, that the
subsequent filing of the rebate claim was barred by limitation.
23. Insofar as the first ground regarding submission of
duplicate documents is concerned, reference may be made to
the judgment of the Division Bench of this Court dated
12.06.2013 passed in Special Civil Application No. 17481 of
2012, wherein the Court, while examining an analogous issue
concerning exporters who had submitted duplicate copies of
ARE-1 while claiming rebate, held as under:-
"[6.3] It appears from the impugned order passed by
the Revisional Authority that while rejecting the rebate claim
of the petitioners on non-submission of the original and
duplicate copies of ARE1s, the Revisional Authority has
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observed that what has weighed with the Revisional Authority
is that production of original/duplicate copy of ARE1 is
mandatory and of compulsory nature which is required as per
the procedure required to be followed statutorily and that
original/duplicate copies of ARE1s are very important and vital
documents so as to enable the Authority to satisfy the claim of
the exporter and to compare the same along with the other
documents. However, it is required to be noted that as per the
requirement of law, submission/production of original and
duplicate copies of ARE1 along with the rebate claim is not the
only requirement. As observed herein above, along with the
rebate claim, an exporter claiming rebate of duty is required to
produce number of other documents such as shipping bill, bills
of lading, mate receipt etc. If the intention was to produce and
consider the original and duplicate of ARE1, only in that case,
there is no requirement of production of other documents.
Under the circumstances, merely because the exporter could
not produce/submit along with the rebate claim, the original
and duplicate copies of ARE1 but has produced other
documents like mate receipt, shipping bills, bills of lading etc.
and from the supporting and corresponding documents is able
to prove and establish that the excisable goods have in fact
been exported on payment of duty from its factory /
warehouses and all other conditions and limitations mentioned
in clause 2 of the notification issued under Rule 18 are
satisfied, exporter shall be entitled to the rebate of duty.
[6.4] The aforesaid issue is also required to be viewed from
another angle. It cannot be disputed that an exporter is
entitled to the rebate of the duty under Rule 18 on fulfillment
of the conditions and limitations mentioned in clause 2 of the
notification issued under Rule 18 of the Rules. Submission of
documents along with the rebate claim is falling under the
head "procedure". Therefore, as such production of the
original and duplicate copies of ARE1 along with the rebate
claim is a procedural one. Therefore, even if some documents
though required to be produced along with the rebate claim
could not be produced but from other documents it can be
established and proved that all the conditions and liabilities for
rebate claim are satisfied, the exporter shall be entitled to the
rebate of duty. There can be more than one valid reasons for
nonproduction of one or two documents required to be
produced as per the procedure. Merely because for some valid
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reasons the exporter is not able to produce some documents
which are required to be produced as per the procedure, if on
facts and considering other documents, if the exporter is able
to prove and satisfy the Authorities with all the conditions and
limitations mentioned in clause 2 are satisfied, in that case,
exporter shall be entitled to the rebate of duty. Thus, as stated
herein above, production of original and duplicate copies of
ARE1 is not the only requirement. As per the procedure, an
exporter is required to produce other documents also such
mate receipt, shipping bills, bills of lading etc. Thus, to that
extent, the production of original and duplicate copies of ARE1
which are required to be produced along with the rebate claim
as per the procedure is required to he held directory and not
mandatory. However, while holding so, it is observed that even
if nonsubmission of original and duplicate ARE1s, the export is
required to be established and proved with all conditions and
limitations for claiming rebate of duty under Rule 8 more
particularly mentioned in clause 2 of the notification issued
under Rule 18 are satisfied even from other supporting
documents and if still and on considering other documents the
actual export of excisable goods on payment of duty directly
from the factory and/or warehouse is not established and
proved, in that case, the Authority would be justified in
rejecting the rebate claim. However, merely on the ground of
nonsubmission or original and duplicate ARE1s on that ground
alone the rebate claim of an exporter cannot be rejected.
However, even for claiming rebate of duty, the exporter is
required to satisfy from other documents produced that all the
conditions and limitations mentioned in clause 2 of the
notification issue under Rule 18 are satisfied and in fact the
excisable goods have been exported on payment of duty from
its factory or warehouse and other limitations and conditions
are satisfied. In the present case, as stated herein above, on
facts and on appreciation of other documents like mate receipt,
shipping bills, bills of lading etc., Commissioner (Appeals) had
given the finding which is reproduced herein above and the
said observation and finding of the Commissioner (Appeals)
with respect to the actual export of the exported goods on
payment of duty, from their factories have not been upset by
the Revisional Authority."
24. Thus, the Coordinate Bench has held that merely because
an exporter is unable to produce the original and duplicate
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copies of ARE-1 along with the rebate claim, the same would
not by itself be fatal, provided other contemporaneous
documents such as mate's receipts, shipping bills, bills of
lading, etc., are produced and from such supporting
documents it stands established that the excisable goods have
in fact been exported on payment of duty from the factory or
warehouse. In such circumstances, the exporter would be
entitled to rebate of duty. It has further been observed that
there may be more than one valid reason for non-production of
one or more documents prescribed under the procedural
requirements. Merely because certain documents, though
prescribed, are not produced, the claim cannot be rejected if,
on the basis of other material on record, the exporter is able to
establish compliance with the substantive conditions of export
and payment of duty. The production of original and duplicate
copies of ARE-1 is not the sole determinative requirement.
25. In the present case, the petitioner No.1 has produced
quadruplicate copies of ARE-1 along with an indemnity bond
and other supporting documents such as invoices and shipping
bills, etc. These documents have not been doubted by the
respondents. From the material on record, it appears that the
competent authority, while passing the Order-in-Original,
committed no error or illegality in sanctioning the rebate of Rs.
1,29,92,156/-.
26. At this stage, reference may also be made to Chapter 8,
Part-IV of the CBEC Manual(old), which reads as under:-
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"PART-IV
MISCELLANEOUS
1. Time limit for disposal
The rebate sanctioning authority should point out deficiency, if any,
in the claim within 15 days of lodging the same and ask the exporter
to rectify the same within 15 days. All Queries/deficiencies shall be
pointed out once Collectively and piecemeal queries should be
avoided. The claim of rebate of duty on export of goods should be
disposed of within a period of two months."
27. The provisions of Part-IV of Chapter 8 of the CBEC
Manual, which deals with the time limit for disposal of rebate
claims, stipulate that all queries and deficiencies should be
pointed out collectively at one time and that piecemeal queries
ought to be avoided. It is further provided that rebate claims
on export of goods should ordinarily be disposed of within a
period of two months. We may at this stage, mention that the
reliance placed by the senior standing Counsel on Chapter-9 of
the CBEC Manual (Old), is misconceived, since the same deals
with 'refunds' and not 'rebates'. The Introduction to Chapter-9
clarifies that "A separate Chapter No.8 deals with the rebate of
Central Excise Dupty". Thus, the case of the petitioners will be
governed by Chapter-8 and not Chapter-9.
28. Thus, when the petitioners initially filed the rebate
application, it was incumbent upon the respondent officers to
point out any deficiencies so as to enable the petitioners to
cure the same.
29. At this stage, reference may be made to the observations
of the Coordinate Bench in the case of United Phosphorus
Limited (supra), wherein, while examining the provisions of
Section 11B of the Act, 1944 in the context of a refund claim, it
was held that "the course adopted by the Assistant
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Commissioner of returning the claim application without
making an order thereon amounts to refusal to perform the
statutory duty imposed on him to consider the application and
make an order thereon in accordance with law." It was thus
held that it was the duty of the Assistant Commissioner to
consider the claim application and pass an order under Section
11B of the Act, 1944 and the relevant Rules.
30. In the present case, therefore, the Assistant
Commissioner, Kachchh, Gandhidham, instead of returning the
application on 29.12.2017, ought to have pointed out the
specific deficiencies, thereby enabling the petitioners to rectify
them. This constitutes yet another irregularity in the process
adopted by the respondents.
31. Insofar as the second ground of rejection, namely
limitation, is concerned, reference may be made to the
decision of the Coordinate Bench of this Court dated
17.12.2015 passed in Special Civil Application No.7815 of 2014
in the case of Apar Industries Limited (supra), which reads
as under:-
"6. Thus, making of the declarations by the petitioner in format of
Annexure-19 was purely oversight. In any case, neither Rule 18 nor
notification of Government of India prescribe any procedure for
claiming rebate and provide for any specific format for making such
rebate applications. The Department, therefore, should have treated
the original applications /declarations of the petitioner as rebate
claims. Whatever defect, could have been asked to be cured. When
the petitioner re-presented such rebate applications in correct form,
backed by necessary documents, the same should have been seen as
a continuous attempt on part of the petitioner to seek rebate. Thus
seen, it would relate back to the original filing of the rebate
applications, though in wrong format. These rebate applications
were thus made within period of one year, even applying the
limitation envisaged under Section 27 of the Customs Act. Under the
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circumstances, without going into the question whether such
limitation would apply to rebate claims at all or not, the Department
is directed to examine the rebate claims of the petitioner on merits.
For such purpose, revisional order and all the orders confirmed by
the revisional order are set aside. The Department shall process and
decide rebate claims in accordance with Rules."
32. Thus, the Appellate Authority fell in error in rejecting the
rebate claim on the ground of limitation, more particularly in
wake of the fact that the original application was within time,
and the same has been returned on the ground of technical
defect, and the claim/application was not rejected. There was
no order passed on the application rejecting the claim, but the
same was returned. Hence, the Assistant Commissioner in his
Order-in-Original dated 25.09.2018 has precisely held that
claim was within time.
33. On an overall appreciation of the facts, and the legal
precedent, we find merits in the writ petition. Hence, it
succeeds and is accordingly allowed. The impugned order(s)
are hereby quashed and set aside. The Order-in-Original dated
25.09.2018, which is partly in favour of the petitioner, is
revived to such extent. It is noted that pursuant to the Order-
in-Original passed by the competent authority, the petitioners
have already been paid the sanctioned amount. Therefore, no
further directions are required to be issued. Rule is made
absolute accordingly. No order as to costs.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(PRANAV TRIVEDI,J)
MAHESH/21
