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TMI Blog2014 (5) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as "claimant") holding central excise registration, re-submitted the refund claims in respect of CENVAT credit on inputs used in the manufacture of their product which were cleared under Rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as "the Rules"). That the adjudicating authority was of the opinion that since the claimant has not physically exported the goods but merely supplied the goods to 100% EOU , the provision of Rule 5 of the Rules are not applicable and therefore, there are not entitled for refund of CENVAT credit under Rule 5 and therefore, the claims were liable to be rejected under Rule 5 of the Rules. The adjudicating authority served a show-cause notice upon the claimant and the claimant was directed to show cause why the refund claim should not be rejected under the Rules. 2.2. That the claimant challenged the said show cause notices before this Court by way of Special Civil Application No.10220 /2013 and other allied petitions and this Court disposed of the said special civil applications vide order dated 03.07.2013 directing the claimants to file reply to the show cause notices and the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field is binding upon the respondent No.4 . It is submitted that the said binding decision of the jurisdiction of the High Court is binding upon the respondent No.4 . It is submitted that merely because the decision in the case of NBM Industries, though directly on the point, is in the case of another assessee , is no ground by the respondent No.4 adjudicating authority not to follow the same. 3.2. It is further submitted that the respondent No.4 adjudicating authority has materially erred in not relying upon the decision of this Court in the case of NBM Industries (Supra) and in observing that as the decision in the case of NBM Industries (Supra) is in case of another assessee , it cannot be accepted as a rule. It is further submitted by Shri Soparkar , learned counsel appearing on behalf of the petitioner - claimant that the respondent No.4 adjudicating authority has erred in holding that as the decision in the case of NBM Industries (Supra) is in the case of another assessee and not in the case of the claimant, the same cannot be relied upon by the claimant. 3.3. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that it is immaterial that in a previous litigation a particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities/Tribunals in the State. It is further submitted that it is also further observed by the Hon'ble Supreme Court in the said decision that if inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S.2 ( b) of the Contempt of Courts Act, 1971. 3.7. Shri Soparkar , learned counsel appearing on behalf of the petitioner has submitted that the impugned orders passed by the respondent No.4 - adjudicating authority is required to be considered from another angle also. It is submitted that if the observations made by the adjudicating authority made in the impugned order that an assessee cannot claim refund of any duty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly joined the department in the year 2011 and she has acted bonafidely to protect the interest of the revenue. 5. Heard the learned counsel appearing on behalf of the respective parties at length and perused the impugned orders passed by the respondent No.4 - adjudicating authority rejecting the refund claims of the claimant. At the outset it is required to noted that as such there is a direct binding decision of this Court in the case of NBM Industries (Supra) which is in favour of the assessee holding that on inputs used in manufacture of goods cleared by TDA units to 100% EOU refund of CENVAT credit would be available to the assessee and it would not be denied on the ground that it was the case of deemed export and refund could be granted only in case of physical export. It is also required to be noted that in the said decision the revenue pressed into service the decision of the Madras High Court in the case of BAPL Industries Ltd. (Supra) [which has been relied upon by the adjudicating authority in the present case] and the Division Bench after considering the said decision held as stated hereinabove. Despite the decision of this Court in the case of NBM Industries (Supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and the consequent impugned orders passed by the adjudicating authority - respondent No.4 cannot be sustained for a moment. It is required to be noted that the decision of Division Bench of this Court in the case of NBM Industries (Supra) is binding upon the respondent No.4 . Merely because the said decision is in the case of another assessee , the respondent No.4 could not have ignored the same and/or not followed the same by holding that it is not binding ruling as the same is in case of another assessee . It appears that the respondent No.4 has not properly understood the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (Supra). In the case of Mafatlal Industries Ltd. (Supra), the Hon'ble Supreme Court has never held that a decision of the higher appellate authorities/courts which may be in the case of another assessee are not binding to the lower authorities, on the ground that the same is in the case of another assessee . It is also not held by the Hon'ble Supreme Court that it is not open for a person to make refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. On the contrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment can as well prefer appeal in terms of the statutory provisions contained in the Central Excise Act, 1944. 9. Counsel for the petitioners brought to our notice the decision of the Apex Court in the case of Union of India vs. Kamlakshi Finance Corporation Ltd. reported in 1991 (55) E.L.T . 433 (S.C.) in which while approving the criticism of the High Court of the Revenue Authorities not following the binding precedent, the Apex Court observed that: "6... It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S.35E ( 1) or (2) to keep the interests of the department alive. If the officer's view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail." 10. Under the circumstances, we have no hesitation in striking down the impugned order dated 13.7.2012. We clarify that this should not be seen as any indication of our view of upholding the view of the Tribunal contained in its decision dated 21.6.2010. It would be open for the Department to call in question such a view in appropriate proceedings as in the manner permissible to the Department. Petition is disposed of accordingly." 5.3. In the case of Legrand (India) Pvt. Ltd. (Supra), the Bombay High Court has held as under: (a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very petitioner. Resultantly, petition stands allowed. Both the show cause notices dated 21.8.2012 and 22.1.2013 are quashed and struck down." Considering the aforesaid law laid down by the Hon'ble Supreme Court, it was not open for the adjudicating authority - respondent No.4 herein not to follow the binding decision of this Court in the case of NBM Industries (Supra), solely on the ground that the said decision is in the case of another assessee and the claimant cannot rely upon the said decision. It is also required to be noted that despite the binding decision of the jurisdictional court in the case of NBM Industries (Supra), adjudicating authority has relied upon the decision of the Madras High Court in the case of BAPL Industries Ltd. (Supra), which was as such considered by this Court while passing the order in the case of NBM Industries (Supra). We strongly disapprove the observation made by the adjudicating authority that the decision of this Court in the case of NBM Industries (Supra) is not a ruling as it is in the case of another assessee . The decision of this court in the case of NBM Industries (Supra) though may be in the case of another asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no other malafide alleged and that the respondent No.4 is reported to be recently joined the department in the year 2011 and the unconditional apology tendered, we close the proceedings so far as the proceedings under the Contempt of Courts Act are concerned. 6. In view of the above and for the reasons stated above and the decision of this Court in the case of NBM Industries (Supra), the impugned orders passed by the respondent No.4 rejecting the refund claims of the petitioner cannot be sustained and they deserve to be quashed and set aside and are accordingly quashed and set aside and the respondents - adjudicating authorities are hereby directed to sanction the respective refund claims of the claimant after following the law laid down by this Court in the case of NBM Industries (Supra) and pass fresh orders within a period of two months from the date of the receipt of the present order and to make the actual payment within a period of four weeks thereafter and also grant consequential reliefs which may be available to the petitioners under the relevant provision of the rules more particularly Rule 5 of the Rules. 6.1. Before parting with the present order, we are cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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