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High CourtsDivision Bench(2012) 07 BOM CK 0173

Cummins India Ltd. vs Union of India

Bombay High Court · Decided on 17 July 2012 · Citation: (2013) 288 ELT 330

HON’BLE JUDGES
R.Y. Ganoo, J · J.P. Devadhar, J
CASE NUMBER
Write Petition No. 1964 of 2012

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Judgment

4 paragraphs · 353 words
1.

Heard. Rule. Rule is made returnable forthwith. By consent, the petition is taken up for hearing and final disposal. This writ petition is filed to challenge the order of the revisional authority dated 18th November 2011, whereby the orders passed by the authorities below in rejecting the rebate claim of the petitioner has been upheld.

2.

In the present case, the petitioner on 23rd March 2008 had filed rebate claim for Rs. 81,62,805/- in respect of the exports effected in the year 2007. By an Order-in-Original dated 28th October 2009, the rebate claim was rejected by the adjudicating authority on the ground that ARE-1 has not been prepared and produced by the petitioner. Appeal filed against the Order-in-Original was dismissed by the Commissioner (Appeals) on 10th February 2010. Revision Application filed by the petitioner was dismissed by the Joint Secretary to the Government of India on 18th November 2011. Challenging the aforesaid order, present petition is filed.

3.

After the matter was argued for some time, counsel for the parties state that the Government of India in the case of In Re : Commissioner of Central Excise, Bhopal reported in 2006 (205) E.L.T. 1093 (G.O.I.) has held that where exports have been effected without the ARE-2, the rebate claim of the exporter could be considered.

4.

In this view of the matter, the orders passed by the authorities below, being Order-in-Original dated 28th October 2009, order of Commissioner (Appeals) dated 10th February 2010 and order passed by the Joint Secretary to the Government of India on 18th November 2011 are quashed and set aside and the matter is restored to the file of the adjudicating authority for fresh consideration in accordance with law. We make it clear that we have not expressed any opinion as regards the applicability of the decision of the Government of India reported in 2006 (205) E.L.T. 1093 to the facts of the present case. However, the adjudicating authority shall consider the applicability of ratio laid down therein to the facts of the present case. The writ petition is accordingly disposed off with no order as to costs.