JUDGMENT : A.B. Chaudhari, J. 1. This revision application is directed against the judgment and order below Exh.-32 in Special Case No. 9/2012, passed by Special Judge, Central Bureau of Investigation, Nagpur on 08.11.2013, by which the application under Section 227 of the Cr.P.C. for discharge was rejected. The Deputy Commissioner (Rebate), Central Excise, Raigad had passed an order on 14.07.2012, rejecting the rebate claims of M/s. Anchor Engineering Corporation, Navi Mumbai, for which following reasons were recorded by him. "It is proved beyond doubt from the verification report received from the jurisdictional central excise authorities of the manufacturer that the said manufacturer had defaulted payment of duty beyond the grace period of 30 days. It has also been confirmed by these authorities that the manufacturer continued to clear the goods by utilizing Cenvat credit and by availing the facility of monthly payment in utter disregard of the provisions of sub-rule (3A) of Rule 8 ibid, thus it is established beyond doubt that no duty was paid on the goods exported by the claimant from the premises of the manufacturer. Further, para 2.1 of Chapter 8 of the Supplementary Instructions clearly provide that the exporters are required to give certain declarations on the ARE-1s. On perusal of the proforma of ARE-1 prescribed as Annexure-14 in the Central Excise Manual, it is seen that the exporter has to give a clear and unambiguous declaration to the effect that 'we hereby certify that the above mentioned particulars are true and correctly stated. While the manufacturer who prepares the ARE-1 shows the amount of duty paid in column No. (9) and the amount of rebate claimed in column No. 11 of the ARE-1 the above mentioned certificate/declaration by the exporter clearly signify that he has satisfied himself inter-alia about the duty paid on such goods. In other words, the law casts upon an equal responsibility upon the exporter to see that the goods which are claimed to be removed for export under rebate scheme have suffered the duty at the hands of the manufacturer. In the instant case, the manufacturer knowingly avoided to pay the duty on the subject goods. Further the manufacturer, in utter disregard of the provisions of Rule 8(3A), continued to clear the goods after the expiry of a grace period of 30 days by utilizing the caveat credit and also not paying the same consignment-wise. In the instant case, the manufacturer knowingly avoided to pay the duty on the subject goods. Further the manufacturer, in utter disregard of the provisions of Rule 8(3A), continued to clear the goods after the expiry of a grace period of 30 days by utilizing the caveat credit and also not paying the same consignment-wise. The provisions of Rule 8(3A) in such circumstances are very clear. They provide that in such cases, the goods shall be deemed to have been cleared without payment of duty. I find that the claimant was very much aware of the intentions of the manufacturer of not making the payment as per the provisions of Rule 8(3)(1) ibid. Nevertheless, the claimant filed the rebate claims with the maritime department without bothering to ascertain before hand from the manufacturer whether he had paid the duty on the subject goods. Under these circumstances when the goods themselves have not suffered the duty, question of subsequent rebate does not arise. ........ "ORDER" I hereby reject all the 83 rebate claims totally amounting to Rs. 56,12,056/- (Rupees Fifty Six Lakhs Twelve Thousand Fifty Six Only) (mentioned in the Annexure-A attached to this order) on the grounds discussed above." 2. Based on the above order dated 14.07.2012, passed by Deputy Commissioner (Rebate), Central Excise, Raigad, an FIR was lodged with Central Bureau of Investigation for an offence punishable under Section 120-B read with sections 420, 468, 471 and 511 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the present applicant and Mr. Yatin Babulal Mehta, Director of M/s. Munis Forge Ltd. Nagpur with allegations that the duty paid certificates were fraudulently issued by the applicant by abusing his official position as Superintendent of Central Excise and Customs, to make them pay rebate claim and accused No. 2 got pecuniary advantage. Yatin Babulal Mehta, Director of M/s. Munis Forge Ltd. Nagpur with allegations that the duty paid certificates were fraudulently issued by the applicant by abusing his official position as Superintendent of Central Excise and Customs, to make them pay rebate claim and accused No. 2 got pecuniary advantage. The substance of the charge leveled by Inspector of Police, Central Bureau of Investigation, Nagpur, reads thus: "This case was registered in CBI, ACB, Nagpur branch on 11.08.2011 U/s. 120-B, r/w 420 of IPC, AND 13(2) R/W 13(1)(d), (15) of the Prevention of Corruption Act, 1988 on the basis of source information alleging therein that Shri C.M. Burde while functioning as Superintendent in Central Excise and Customs, Range-V Division-I Nagpur and in furtherance of criminal conspiracy with the private manufacturer and exporter, furnished bogus duty paid certificate showing the payment of excise duty paid certificate, to the tune of Rs. 22,41,354/- based on which the exporter claimed rebate on the exports of which Rs. 2,98,252/- was paid and has thus cheated the dept. and also attempted to cheat the dept. Investigation disclosed that during period October 2009 to November 2010, Shri C.M. Burde had entered into a criminal conspiracy with Shri Yatin Mehta Director of Munis Forge Ltd. Nagpur, dishonestly and fraudulently issued false duty paid certificate to the rebate section to facilitate payment of the rebate claim made by M/s. Anchor Engineering of Rs. 25,39,606/- and facilitated the payment of rebate of Rs. 2,98,252 out of the above claim, knowing fully that the manufacturer had not paid the excise duty and was defaulted. The claims for Rs. 22,41,354/- was not paid as the fraudulent Duty paying certificate issued by the accused officer was detected. When the Manufacturer was defaulted as per the provision of Ce. Ex. Rules during the period from November 2009 to July 2010 the manufacturer cleared the goods using CENVAT Credit by paying Rs.1,48,87,372/- including educational cess and higher educational cess, by issuing bogus verification letters proving his active role in the criminal conspiracy. The accused company had derived a wrongful gain of Rs.1,48,87,372/- which he had not paid as per the provisions of Ce. Ex. Rule 2002." Pursuant to the order dated 14.07.2012, that was made by Deputy commissioner (Rebate), Central Excise, Raigad, the FIR was lodged and investigation was made by the CBI. 3. The accused company had derived a wrongful gain of Rs.1,48,87,372/- which he had not paid as per the provisions of Ce. Ex. Rule 2002." Pursuant to the order dated 14.07.2012, that was made by Deputy commissioner (Rebate), Central Excise, Raigad, the FIR was lodged and investigation was made by the CBI. 3. The said order of the Deputy Commissioner (Rebate), Central Excise, Raigad was put to challenge before the Commissioner, Central Excise (Appeals), Mumbai who decided the said appeal on merits, after hearing all the concerned parties, by appellate judgment and order dated 27.11.2012. The appellate authority i.e. Commissioner, Central Excise (Appeals), Mumbai set aside the order dated 14.07.2012 passed by Deputy Commissioner (Rebate), Central Excise, Raigad at the behest of appellant M/s. Anchor Engineering Corporation, Navi Mumbai. The reasons recorded by the appellate authority are as under: "6. One of the reasons for denying the rebate claim is that the manufacturer M/s. Munis Forge Ltd. From whom the merchant manufacturer had procured the good for export, has defaulted in payment of duty in time. Manufacturer was to pay duty for the month of October, 2009 by 5th November, 2009, but the duty was paid in the months of June and July, 2010. Rule 8(3A), provides that if the manufacturer does not make payment of the default payment within the prescribed time limit or within the extended grace period of 30 days, then the goods should be cleared consignment wise without utilizing Cenvat credit. Non following of the said procedure would make the goods deemed to have been cleared without payment of duty. The Adjudicating Authority has rejected the rebate claim as the manufacturer i.e. M/s. Munis Forge Ltd. himself defaulted in payment of duty. Since no duty is paid on the goods exported, no rebate can be sanctioned. 7. Since the manufacturer i.e. M/s. Munis Forge Ltd. Nagpur, has defaulted in payment of duty of Rs. 2,35,372/- in the month of October, 2009, department has issued a Show Cause Notice to the manufacturer, which was later dropped by the Commissioner of Central Excise, Nagpur vide OIO No. 16/C. Ex. 2011-12 Dt. 28.12.2011 but imposed penalty. While dropping the demand, Commissioner observed at Para 30 of the OIO dt. 28.12.2011 that "Section 11A does not authorize the recovery of any duty again if the duty has already been discharged. 2011-12 Dt. 28.12.2011 but imposed penalty. While dropping the demand, Commissioner observed at Para 30 of the OIO dt. 28.12.2011 that "Section 11A does not authorize the recovery of any duty again if the duty has already been discharged. This section does not provide for recovery of duty by considering any deeming fiction. Provisions of Section 11A are not attracted in such situations. Show Cause Notice refers to Section 11A of the Act on one hand which deals with the recovery of duty not paid or short paid, as well as Rule 8 of Central Excise Rules, 2002, on the other hand, relates to payment of duty. Hence, provisions of Section 11A are not attracted." Taking these aspects into consideration, demand for duty was dropped, but interest and penalty were upheld. 8. Since the original demand notice issued to the manufacturer i.e. M/s. Munis Forge Ltd. demanding duty has been dropped by the concerned Commissioner vide OIO dt. 28.12.2011, the Assistant Commissioner, at a later date, cannot now hold that the rebate cannot be sanctioned as no duty was paid by the manufacturer. The rebate rejection order was passed on 14.7.2012 whereas the Commissioner, Nagpur dropped the demand on 28.12.2011. The rebate sanctioning authority has not taken into consideration the OIO dt. 28.12.2011 while rejecting the rebate claim which is bad in law. Government of India in the case of Vikram International (2012 (277) E.L.T. 425 (G.O.I.) observed that "Rebate-Claim of-Exporter bona fidely purchasing goods from manufacturer and exporting them on ARE-1's and Central Excise invoices showing payment of duty with particulars of manufacturers, addresses, value, etc. 28.12.2011 while rejecting the rebate claim which is bad in law. Government of India in the case of Vikram International (2012 (277) E.L.T. 425 (G.O.I.) observed that "Rebate-Claim of-Exporter bona fidely purchasing goods from manufacturer and exporting them on ARE-1's and Central Excise invoices showing payment of duty with particulars of manufacturers, addresses, value, etc. No evidence of mutuality of interest, financial control or flow back of fund between the two" "Rebate claim of exporter could not be rejected on ground that manufacturer had availed Caveat credit on bogus invoices -there was no allegation against exporter and they could not be penalized by denial of rebate - It was more so as there is sufficient legislative and machinery provisions for recovery of wrongly availed Cenvat credit - Exporter cannot be held responsible for not taking adequate steps in terms of Rule 9 of Cenvat Credit Rules, 2004 for manufacturer ensuring inputs are duty paid - Rule 18 of Central Excise Rules, 2002" "Rebate-Claim of Merchant-exporter has to take reasonable steps to satisfy itself about existence, identity and address of supplier/manufacturer - On facts, as there was no dispute on Central Excise registration of supplier, their identity and documents supplied with rebate claim, transaction found to be bona fide Rule 18 of Central Excise Rules, 2002". In the instant case, the merchant exporter has taken every reasonable step to satisfy himself about the existence, identity and address of the supplier/manufacturer. No violation has been committed by the manufacturer. Hence, rebate is sanctionable to the merchant manufacturer. 9. Further, I have perused the details like ARE 1 No., Invoice No., Date, etc. mentioned in the Annexure A to the OIO vide which rebate claim for 83 entries was denied. The appellants, vide letter dt. 10.10.2012, submitted all relevant documents pertaining to 83 rebate Claims. It is observed that from the said Annexure that the rebate claims at Sr. No. 1 to 34 are related to Invoices issued during the period 1st October, 2009 to 19.7.2010, these are the invoices on which demand notice has been issued to the manufacturer i.e. M/s. Munis Forge Ltd., for non payment of duty. Since the demand of duty has been set aside by the Commissioner, Nagpur, the issue of non payment of duty does not remain. Hence, rebate on the ARE 1 cannot be denied on the said premise of non payment of duty. 10. Since the demand of duty has been set aside by the Commissioner, Nagpur, the issue of non payment of duty does not remain. Hence, rebate on the ARE 1 cannot be denied on the said premise of non payment of duty. 10. As regards the remaining rebate claims cited at Sr. No. 25 to 83 i.e. 49 rebate claims pertain to the period from 1st August, 2010 to 13.9.2011, these are invoices which were issued post the default period. In the instant case, the default was continued from October, 2009 to July, 2010, there was no dispute about payment of duty by the manufacturer i.e. M/s. Munis Forge Ltd. for the goods cleared post July, 2010. Hence, the rebate claims in respect of entries cited at Sr. No. 35 to 83 cannot be denied on the premise that duty was not paid by the manufacturer. 11 to 13. ..... 14. The other objection for denial of rebate is that the duty payment certificate was not appearing on the triplicate copy of the ARE 1. In the instant case, the rebate claims were filed in July, August, September, October, December, 2010 and January, March, 2011, all the rebate claims were kept pending with department and the Deficiency Memo-cum-Show Cause Notice-Personal Hearing, was issued to the appellants after more than new year of filing of claims. CBEC, way back in 1998 i.e. vide Circular dt. 2.6.98, directed that the refund/rebate claims shall be processed within 3 months of filing claims. As regards whether duty was paid on these export consignments, brief facts of the case discussed in the impugned order reveal that the Department, vide letter dt. 6.1.2012, made communication with the Nagpur Commissionerate, requesting to continue the duty payment particulars in respect of the rebate claims pending. On the receipt of the communication letter dt. 31.12.2012 from Asstt. Commissioner, Division-I, Nagpur Commissioner Deficiency memo has been issued alleging therein that duty was not paid as the manufacturer had defaulted in payment of duty in respect of duty payable for the month of October, 2009, since the demand for duty itself has been dropped by the Commissioner, Nagpur himself, there arises no cause for issuing Deficiency Memo for non payment of duty. Hence, the Revenue at the stage of sanctioning the rebate once again cannot agitate on the issue of not finding duty payment certificate on the triplicate copy of the ARE 1. 15...... 16. The Adjudicating Authority has rejected the rebate claims on the ground that "the claimant in their written submissions have contended that the triplicate copies of the ARE 1 should have been handed over to them in a sealed cover by the jurisdictional Range Superintendent of the manufacturer which he failed and therefore they cannot be held responsible for this lapse. This argument of the claimant indicates that the triplicate copies of the ARE 1's were not available alongwith rebate claims. It is seen on careful perusal of the DM (Deficiency Memo) that no such allegation has been made. Therefore, this argument of the claimant is irrelevant to the facts of the case. I fail to understand how this argument is irrelevant to the facts of the case". Here I observe that the Adjudicating Authority has arrived at conclusion without citing any reasons to establish his point of view. Over and above, the procedure itself provide that in case of self-sealing, the Superintendent or Inspector of Central Excise shall, after verifying the particulars of the duty paid or duty payable and endorsing the correctness or otherwise, of these particulars." (a) Send Triplicate copy of the ARE 1 to the officer with whom rebate claim is to be filled, either by post or by handing over to the exporter in a tamper proof sealed cover after posting the particulars in official record. Hence, the onus of forwarding the Triplicate copy of the ARE 1 is on the Department. The Adjudicating authority has failed to appreciate the lapse on the part of the Department." 4. Thus the order in original passed on 14.07.2012 by Deputy Commissioner (Rebate), Central Excise, Raigad and on the basis of which FIR was lodged on 23.08.2012 with CBI and investigation was conducted, thus stood completely set aside by the appellate authority. In other words, the foundation for lodging of the FIR does not exist after the appellate order was passed on 27.11.2012 by the appellate authority. 5. In other words, the foundation for lodging of the FIR does not exist after the appellate order was passed on 27.11.2012 by the appellate authority. 5. Thereafter, the original authority namely; Deputy Commissioner (Rebate), Central Excise, Raigad, for complying with the order of the appellate authority, passed an order on 06.03.2013, relevant of part of which reads thus: "Being aggrieved by the said Order-in-Original dated 14.7.2012, the claimant filed the appeal before the commissioner of Central Excise (Appeals), Mumbai-III. The Commissioner of Central Excise (Appeals), Mumbai-III vide Order-in-Appeal No. BC/410/RGD (R)/2012-13 dated 27.11.2012 allowed the appeal filed by the claimant and set aside the said Order-in-Original dated 14.7.2012. FINDINGS The claims have been checked/scrutinized. The market price as declared in the ARE-1/invoice is seen to be more than the rebate claimed. The claims are checked in the light of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-CE(NT) : dated 6.9.2004 and Chapter 8 of the Central Excise Manual of Supplementary Instructions and are found in order/admissible. The rebate claims were submitted within stipulated time and the goods in question have been exported from JNPT, Nhava Sheva. The verification of unjust enrichment is not required in terms of Section11B(2) proviso (a) of Central Excise Act, 1944. In view of the same, the rebate claims are found correct and admissible to them. Therefore, I pass the following order. ORDER I hereby sanction rebate claims of Rs. 56,12,076/- (Rupees Fifty Six Lakhs Twelve Thousand and Seventy Six Only) to M/s. Anchor Engineering Corporation, as detailed in Annexure-A, under the provisions of Section 11B of the Central Excise Act, 1944 read with Rule 18 of the Central Excise Rules, 2002." 6. Thus the matter ended at the level of department itself as above. However, the FIR, that was already lodged and investigation that has already begun, continued and as a result, the charge-sheet was filed before the CBI Court. 7. The Counsel for the applicant invited my attention to the documents, in respect of which much hue and cry was made about making of false documents or forged Duty Paid Certificate and with the assistance of the counsel for the rival parties, I have perused all these documents. 7. The Counsel for the applicant invited my attention to the documents, in respect of which much hue and cry was made about making of false documents or forged Duty Paid Certificate and with the assistance of the counsel for the rival parties, I have perused all these documents. Perusal of these documents show that the verification reports have been furnished and the payments were made by challan to the department and were verified and found correct by the applicant, who accordingly signed the same in token thereof. All these documents clearly show the verification, challan numbers and payments made and the remarks, if any, about default etc. It is not the case of the non applicant that the payments, which were shown to have been made by the applicant, were not made to the Department of Central Excise and that, therefore, the verification was fraudulent or forged. On the contrary, the appellate authority has, in its appellate order, found to the contrary. I have also perused the reply filed by non applicant to this revision application. It is nowhere claimed in the reply that the payments verified and found correct and challan numbers given in all these above referred documents were, in fact, not made or that the department did not receive those payments. It clearly appears that the non applicant-CBI lodged the FIR and conducted investigation pursuant to the first order dated 14.07.2012 made by Deputy Commissioner (Rebate), Central Excise, Raigad, which has rejected the claim of M/s. Anchor Engineering Corporation, Navi Mumbai. But then the respondent-CBI did not wait for the further process namely; filing of appeal and so and so forth before making haste to lodge the FIR and also to file charge-sheet. It is an admitted position that the appellate order dated 27.11.2012, that was passed by the Commissioner of Central Excise (Appeals), Mumbai setting aside the order in original dated 14.07.2012 on the basis of which the FIR was lodged, has attained finality. 8. In that view of the matter, a clear cut case for discharge from the prosecution was made out by the applicant. The learned trial Judge, however, did not consider the above relevant aspects of the matter. In the result, following order is passed. ORDER (i) Criminal Revision No. 23/2014 is allowed. 8. In that view of the matter, a clear cut case for discharge from the prosecution was made out by the applicant. The learned trial Judge, however, did not consider the above relevant aspects of the matter. In the result, following order is passed. ORDER (i) Criminal Revision No. 23/2014 is allowed. (ii) Impugned order dated 08.11.2013 below Exh.-32 in Special Case No. 9/2012, passed by Special Judge, Central Bureau of Investigation, Nagpur, is set aside. (iii) Application Exh.-32 in Special Case No. 9/2012 is allowed and the applicant is discharged from Special Case No. 9/2012. (iv) Rule made absolute in terms of prayer clause (ii).