- (1.) THIS writ petition is directed against order dated 27.02.2004 passed by the Joint Secretary, Government of India, whereby, the application filed by the petitioner under Section 35EE of the Central Excise Act, 1944 ('the Act') has been rejected while upholding the order in appeal dated 04.09.2003 passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur ['Commissioner (Appeals-II)'] and the order-in- original dated 19.06.2000 passed by the Assistant Commissioner, Central Excise & Customs Division, Chittorgarh ('Commissioner'), who rejected the rebate claim made by the petitioner.
(2.) THE brief facts of the case are that the M/s. Deepak Spinners Ltd. exported a quantity of 34875.60 sq. meters of processed man made fabrics, cleared by it and submitted rebate claim of Rs.45,966/- before the Commissioner under Rule 12(1) (a) of the Central Excise Rules, 1944 ('the Rules) in respect of central excise duty paid in cash under compound levy scheme. The Commissioner issued show cause notice dated 11.04.2000 calling upon the petitioner to show cause as to why the rebate claim be not rejected on the grounds indicated in the show cause notice, which, inter alia, related to the fact that the goods were not cleared from the factory premises for the purpose of export; form AR-4 was not prepared; clearances for export had not been supervised by the jurisdictional Central Excise Office and that the claim was time barred. The petitioner submitted its reply to the show cause notice explaining that the goods were initially cleared from the factory for home consumption and, therefore, AR-4 was not prepared, however, the petitioner had filed all other prescribed documents and, therefore, the fact of export is proved and that the claim should not be rejected on account of procedural lapses.
(3.) THE adjudicating authority i.e. the Commissioner came to the conclusion that the Circular relied upon by the petitioner was not applicable and in terms of the applicable Notification being No.31/98-CE(NT) dated 24.08.1998 the excisable goods are required to be exported directly from the factory or a warehouse in accordance with the procedure set up in Chapter IX of the Rules and as the petitioner has neither fulfilled the conditions laid down by virtue of Notification No.31/98-CE(NT) nor has followed the procedure prescribed under Board's Circular dated 30.01.1997, the rebate claim was liable to be rejected. However, in view of its finding on merits, the issue relating to limitation was not decided.;