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TMI Blog2013 (11) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... y availed – Decided against Petitioner. - Special Civil Application No. 13931 of 2011 - - - Dated:- 15-9-2011 - Akil Kureshi and Sonia Gokani, JJ. Shri Paresh M. Dave, Advocate, for the Petitioner. None, for the Respondent. ORDER Petitioner is an exporter-manufacturer. During the course of its activities, the petitioner purchased certain raw materials for manufacturing of cloth. The petitioner claimed rebate. Since the adjudicating authority was of the opinion that rebate could not be granted, he issued show cause notice dated 18th July, 2006. In the notice, it was pointed out that there was a large scam unearthed in Surat regarding fraudulent rebate claims where the exporters had submitted bogus bills and documents. It was stated that during the investigation of fraudulent rebate claim cases, other modus operandi was also detected. It was noticed that number of persons who had obtained registrations as manufacturers had issued various central excise duty paying invoices without any movement of goods and in fact no goods were sold by them. It was, therefore, stated that as per the Department, the petitioner had purchased the goods from various firms which were eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng observations : 5.4 The order in original records that M/s. Shri Hari Enterprise is fake/fictitious/bogus and has been declared as such vide Alert Circular of the Commissioner of Central Excise, Surat-I. The appellant has taken the stand that M/s. Hari Enterprises took registration on 10-12-2003 and surrendered the registration on 14-5-2004. Their plea is that panchnama dated 12-2-2005 drawn on the premises of M/s. Hari Enterprise is not sufficient evidence to conclude that the said supplier is fake/fictitious/non-existent. However, appellant have neither made explicit claim that M/s. Hari Enterprise is real or genuine firm nor disclosed the identity of the person with whom they claim dealings running into several lakhs of rupees. The Alert Circular is well publicized and is in public domain. If M/s. Hari Enterprise was a real person, it would have surfaced and challenged the Circular. Further appellant could file an affidavit and disclose its identity. Appellant could file an affidavit of M/s. Hari Enterprise to establish its existence. Nothing of this sort has been done. Under these circumstances it is reasonable to conclude that M/s. Hari Enterprise is a bogus, fictitious, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons concerned or producing any affidavit from such persons to claim the existence of said unit. As such the whole transaction becomes bogus which appears to be created on paper for availing rebate claims fraudulently. The applicant facilitated the availment of wrong credit by processor on the basis of bogus invoices of grey fabrics endorsed by him. The duty paid out of such wrongly availed Cenvat credit can not be treated as payment of duty on export goods as no actual Cenvat credit was available. As such the rebate claim is not admissible under Rule 18 of Central Excise Rules, 2002. 9. Applicant had been pleading that goods are exported and duty was paid and he made the payment by cheque to the suppliers of grey fabrics so rebate cannot be denied. In this regard, it is observed that unless and until duty paid character of exported goods is proved the rebate cannot granted. The cheque payment whose exact details are not available for scrutiny cannot establish the existence of supplier when investigation conducted by Central Excise has categorically revealed the said suppliers of grey fabrics are fake and bogus. 6. Counsel for the petitioner submitted that at least one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were either fake, bogus or non-existent, the petitioner cannot be claimed rebate merely on the strength of exports made. 10. The judgment of this court in the case of Commissioner of C. Ex. Customs v. D.P. Singh (supra) is easily distinguishable. Facts in that case were that one M/s. Roman Overseas had purchased certain goods from M/s. Unique Exports for manufacturing export goods. On the goods so purchased, Roman Overseas had availed Cenvat credit as passed on to it by M/s. Unique Exports as such finished product was eventually exported. On the basis of such exports, Roman Overseas claimed rebate. It was, however, found that Unique Exports had passed on the Cenvat credit on the goods on which duty was not paid. It was specifically held that there was no allegation even in the show cause notice against M/s. Roman Overseas that it was part of such fraud or had knowledge about the same. It was further held that there was no ground against Roman Overseas that it had not taken necessary care as required under law to ensure that the goods were duty paid. In fact, the Commissioner of Appeals and the Government, both had held on facts that M/s. Roman Overseas had taken all necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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