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TMI Blog2014 (9) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... 3930 of 2011 - - - Dated:- 2-7-2014 - M. R. Shah K. J. Thaker,JJ. For the Appellant : Mr. Paresh M. Dave, Adv. For the Respondents : Mr. Hariday Buch, Adv. Mr R J Oza, Adv. Mr Varun K Patel, Adv. JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) 1. By way of this petition under Article 226/227 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order No.266/11CX dated 23.03.2011 passed by the Joint Secretary - Government of India by which the Revisional Authority confirmed the Order in Appeal passed by the Commissioner of Central Excise and Customs (Appeals), Surat1 disallowing the rebate claim of ₹ 30,43,944/claimed by the petitioner on the goods exported by the petitioner as merchant exporter for which according to the petitioner, petitioner applied with all necessary requirements as required under Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as Rules, 2002 ). 2. Facts leading to the present Special Civil Application in nutshell are as under: 2.1 That the petitioner who was exporter cum manufacturer filed rebate claims of ₹ 30,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the manufacturer and the input invoices on which Cenvat Credit has been availed and duty paid. 5. On scrutiny of ER1 returns submitted by M/s. Mamta Silk Mills Pvt. Ltd., Plot No.43/A, Kadodara, Vareli, Tal Palsana, Dist Surat by the jurisdictional Range Officer, it was observed by the Range Superintendent that a quantity of 1055288.00 L. Mtrs. of grey fabrics was shown to be received by the unit from M/s. Universal Textiles, 1008, Raghukul Textile Market, Ring Road, Surat (under the invoices issued by M/s. Delta Blues) on 04.07.2004 for processing on job work basis. The said grey fabrics was shown to be cleared to M/s. Universal Textile after processing on 07.07.2004 and 08.07.2004. Hence, a doubt was raised by the Range Superintendent that a such a large quantity can not be processed in the unit during the said short period as the average daily production of the unit is 35000.00 L Mtrs to 45000.00 L. Mtrs per day. In response to the said show-cause notice, the petitioner submitted the reply dated 06.04.2007 by submitting that as such the goods have been physically exported out of India and that the petitioner has paid the amount of duty and proper documents for claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims of ₹ 30,43,944/. It is submitted that as the petitioner filed the necessary documents along with the respective ARE-1s with full particulars and complied with all the requirements which were required to be complied with under Rule 18 of the Rules, 2002, the authorities below have erred in rejecting the rebate claims of the petitioner. 3.1 It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such the petitioner did physically exported the goods out of India on payment of duty and infact submitted the proper documents for claiming rebate claims and when the documents of export have not been doubted and/or not found to be forged and fake, the petitioner is entitled to the rebate as claimed on the goods actually and physically exported out of India and on which the duty was paid by the petitioner. 3.2 It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such the petitioner purchased the goods/processed fabrics from one M/s. Universal Textiles. It is submitted that as such the said M/s. Universal Textiles purchased the unprocessed fabrics from one M/s. Delta Blues and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) E.L.T. 321 (Guj.) Making above submissions and relying upon the above decision it is requested to allow the present special civil application and direct the respondents to pay / grant the rebate of ₹ 30,43,944/with interest thereon under Section 11BB of the Act. 4. Present petition is opposed by Shri R.J. Oza, learned Counsel appearing on behalf of the Department. It is submitted that in the present case as such there are concurrent findings of facts by all the authorities below that infact there was no physical movement of the goods/inputs and the transactions between the petitioner and the supplier - M/s. Universal Textiles were fake transactions. It is submitted that there are concurrent findings of facts by all the authorities below that the transactions between the petitioner and M/s. Universal Textiles (Supplier) were only billing activities for the purpose of availing CENVAT Credit as well as the rebate. It is submitted that it has been found by all the authorities below that the transactions between M/s. Delta Blues (Supplier of unprocessed fabrics to M/s. Universal Textiles from whom the petitioner is alleged to have purchased the input / raw materials) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that therefore on the aforesaid ground the petitioner is not entitled to the rebate claim. 4.2 Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of D.P. Singh (Supra) by the learned advocate appearing on behalf of the petitioner in support of his submission that as the petitioner had purchased the goods/raw material / inputs from M/s. Universal Textiles and M/s. Universal Textiles was not declared fake supplier and as M/s. Universal Textiles purchased the said goods from M/s. Delta Blues and therefore, the petitioner can be said to be bonafide purchasers who actually and physically exported the goods on payment of duty is concerned, it is submitted that as such the said decision shall not be applicable to the facts of the case on hand. It is submitted that in the present case even there are concurrent findings of fact by all the authorities below that infact the transaction between the petitioner and M/s. Universal Textiles (Supplier) are found to be fake transactions and only billing activities for the purpose of availing CENVAT Credit and the rebate. It is submitted that therefore when even the petitioner has fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal Textiles and thereafter M/s. Universal Textiles supplied the processed fabrics / input / goods to the petitioner. It is the case on behalf of the petitioner that when the petitioner has as such the exported goods on payment of duty the petitioner shall be entitled to the rebate. However, it is required to be noted that unless and until it is established and proved by the petitioner that the petitioner exported the goods by using the inputs on which excise duty / duty was paid then and then only the petitioner shall be entitled to the rebate. In the present case as observed herein above, it has been found and established that the transactions between M/s. Universal Textiles and M/s. Mamta Silk Mills Pvt. Ltd. and thereafter between M/s. Universal Textiles (supplier) and the petitioner were fake transactions. No evidence has been produced to establish and prove the actual physical movement of goods from M/s. Delta Blues to M/s. Universal Textiles and thereafter M/s. Universal Textiles to M/s. Mamta Silk Mills Pvt. Ltd. and thereafter from M/s. Mamta Silk Mills Pvt. Ltd. to M/s. Universal Textiles and thereafter from M/s. Universal Textiles to the petitioner. At this stage some fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out by them as also no one was allowed to carry out the business in this name from the said shop. The learned Commissioner (Appeals) has confirmed the aforesaid finding. The Revisional Authority has also confirmed the above. Under the circumstances when the petitioner failed to prove the actual movement of goods from M/s. Universal Textiles to it and/or that the petitioner used the inputs/goods on which the duty was paid, the petitioner shall not be entitled to the rebate of excise duty despite the fact that the petitioner has exported the goods on payment of duty. As rightly observed by the Commissioner (Appeals), rebate of excise duty is allowed on duty of goods manufactured and exported, only such duty which is paid on goods cleared from the factory and when such goods are exported. As such the same arguments were made by the very petitioner at the time of deciding Special Civil Application No.13931/2011 and it was submitted that as the petitioner had exported the goods and therefore, the petitioner s rebate claim cannot be denied. At that stage also the petitioner heavily relied upon the decision of this Court in the case of D.P. Singh (Supra). While not accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the duty, which is not proved to be paid. Our aforesaid view is supported by the decision of the Division Bench of this Court in the case of Multiple Exports Pvt. Ltd. v. Union of India reported in 2013 (288) ELT 331 (Guj.). 5.2 Now, so far as the contention on behalf of the petitioner that as such M/s. Mamta Silk Mills Pvt. Ltd. paid the duty demanded by the department on account of wrong credit availed by the processor and invoices issued by fictitious/unknown persons and therefore, the petitioner shall be entitled to the rebate of the said duty paid by M/s. Mamta Silk Mills Pvt. Ltd. is concerned, it is required to be noted that as such it is not proved that M/s. Mamta Silk Mills Pvt. Ltd. paid the duty on the very goods which came to be supplied by M/s. Universal Textiles to the petitioner. Under the circumstances, unless and until the same is established the case of the petitioner cannot be considered. In the present case as such it is found that the transactions between the petitioner and its supplier (M/s. Universal Textiles) were found to be fake. Even otherwise it is required to be noted that as such it is pointed out that M/s. Mamta Silk Mills Pvt. Ltd. has demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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