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TMI Blog2024 (7) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2019. 3. In these writ petitions, the challenge to the impugned orders are confined to the following orders: S.No. Writ Petition No Date of impugned order Impugned order No 1 17429 of 2022 19.04.2024 33/2022-ST (SZ)/ASRA/MUMBAI 2 17430 of 2022 19.04.2024 37/2022-ST (SZ)/ASRA/MUMBAI 3 17431 of 2022 19.04.2024 35/2022-ST (SZ)/ASRA/MUMBAI 4 17432 of 2022 19.04.2024 34/2022-ST (SZ)/ASRA/MUMBAI 5 17433 of 2022 19.04.2024 36/2022-ST (SZ)/ASRA/MUMBAI 4. They arise out of Orders at Serial Nos.1 and 3 passed by the Appellate Commissioner, namely the Commissioner of Central Excise (Appeals-I), Madurai, details of which are below: S. No Order of the Commissioner of Central Excise (Appeals-I), Madurai. Order In Original No/Date 1 MAD-CEX-000-APP-063 to 065-2018 dated 27.02.2018 (appeal Nos.198/200/2017-ST(TVL) 25/2017 (ST)(REF), 26/2017(ST)(REF) and 27/2017 (ST)(REF), all dated 11.05.2017 2 309 & 310/2019 dated 14.10.2019 .......... 3 311 & 312/2019 dated 14.10.2019 (Appeal No.51 and 52/2019-ST 06/2019(ST)(REF), dated 21.02.2019 and07/2019(ST)(REF), dated 28.02.2019 and 5. The petitioner had exported consignment of garnets extracted out of illegally mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the second respondent. Details of 5 different Orders in Originals and Orders in Appeals are as detailed below: S.No Period involved Amount (Rs.) Status Order in Original Date Appeal Order 1 Oct-2015 to Dec-2015 4,04,170 Rejected 25/2017 11.05.2017 MAD-CEX-000-APP-063 to 065-2018 dated 27.02.2018 2 Jan-2016 to March-2016 6,23,379 Rejected 26/2017 11.05.2017 3 April-2016 to June-2016 6,22,060 Rejected 27/2017 11.05.2017 4 July 2016 to Sep 2016 6,36,518 Rejected 06/2019 21.02.2019 MAD-CEX-000-APP-311-2019 dated 14.10.2019 5 Oct 2016 to Dec 2016 3,94,131 Rejected 07/2019 28.02.2019 MAD-CEX-000-APP-312-2019 dated 14.10.2019 9. The case of the petitioner before this Court is that the issue is no longer res integra and is covered by a decision of the CESTAT, South Zonal Bench, Chenni, in V.V.Minerals Vs. Commissioner of GST and Central Excise, Madurai reported in 2022 (56) G.S.T.L. 167 (Tri.Chennai). 10. The learned counsel for the petitioner would submit that although the decision of the Tribunal is not binding on this Court, nevertheless it has a pursuasive value and therefore submits that the export incentives granted to an expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same into Garnet). It also Purchased finished Garnet from M/s Indian Rare Earths Ltd-a unit of Govt of India. The purchased Garnets were packed in jumbo bags and exported to various countries. The exports were done following all the processes under the Customs Act. Shipping Bills were filed under Section 50 of the Customs Act, 1962, Let Export Order were endorsed by the proper officer under Section 51 ibid. The export proceeds by way of foreign exchange were received through proper banking channels as prescribed by the Reserve bank of India and the banks have issued Bank Realisation Certificates (BRC). 3. The Petitioner's company, in the process of export of Garnet had availed the services of Clearing & Forwarding Agents, Material handling services at port terminals, and Goods Transport Agency Services on payment of applicable Service tax charged by the service providers. 4. As the petitioner's company could not use the input services credit for payment of output duty/tax, and also in view of the fact that no duties/taxes are collected on exports, it had claimed rebate of Service tax by way of Refund of Service tax by filing claims in Form A-2 in terms of Notification 41/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the petitioner's appeal on the ground that the exports were illegal and up-held the Orders-in-Appeals Nos MADCEX-000 APP 63 to 65-2018 dated 27.02.2018 and No 311 & 312 /2019 dated 14.10.2019 passed by the Commissioner (Appeals). 10. The petitioner respectfully submits that there are no appeal 4 provisions envisaged in Central Excise Act, 1944 or Finance Act, 1994 for filing appeal against the decision of the Respondent 1. Therefore, the petitioner filed these writ petitions before this Hon'ble high Court. 11. The petitioner submits that the department in the counter affidavits only on ground of jurisdiction that the petitioner ought to have filed an appeal against the order of the commissioner (appeals) before the Hon'ble CESTAT not before the revision authority. In this regard, it is humbly submitted that the revision authority entertained the revision petition against the order of the Commissioner (appeals) and further passed the order on merits not on jurisdiction. 12. Without prejudice to the above submission, the petitioner submits that after the revision order, the petitioner cannot file an appeal before the Hon'ble CESTAT and only remedy is before the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit that the petitioner invited the order of the respondents. It is submitted that against the order of the Appellate Commissioner, the petitioner ought to have filed an appeal before the CESTAT in terms of proviso to Section 86 of the Finance Act, 1994. 17. It is submitted that instead of filing a statutory appeal under Section 86 of the Finance Act, 1994, the petitioner approached the first respondent as Revisional Authority under Section 35(EE), which applies only to rebate claims under the provisions of the Central Excise Rules, 2002, read with relevant Notification issued thereunder. 18. It is submitted that there are no disputed facts involved and therefore, rebate in the form of refund of service tax borne by the petitioner has been rightly denied. It is submitted that Section 93A of the Finance Act, 1994 and Notification No.41/12-ST have to be read harmoniously with the object that is sought to be achieved under the of the Finance Act, 1994. 19. It is submitted that the Act and the Notification are meant to incentivise only for legitimate exports and not those exports, which are illegal or out of illegal material. It is submitted that it would not further the public inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out transport permit during the period from 2014-15 to 2016-17 is an illegal transport. As the said quantity of 1,06,707 MT minerals included the minerals exported during October 2015 to December 2015 for which the refund claim has been filed, it appeared that the claimants were not eligible for the refund claimed in as much as the minerals had been exported by illicit transportation. 3. The claimants in their reply dated 24.02.2017, filed in response to the SCN, has stated that they are doing Export of Garnet abrasives for more than 10 years and they used to purchase the Garnet abrasives from M/s.Manickam Minerals, Tuticorin and Indian Rare Earth Ltd, Manavalakurichi on payment; that the G.O. (MS) No.156 dated 08.08.2013 and G.O.(MS) No. 173 dated 17.09.2013 issued by the Government of Tamil Nadu were not applicable to them as they do not have any mining licence and mining operations in their name; that they purchase the Garnet from the above parties and export them. Finally they have requested for sanctioning the refund of Rs. 4,04,170/-. With their reply, they have enclosed sample copies of invoices for the purchases made from M/s.Manickam Minerals and M/s.Indian Rare Earths L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one District level committee and its recommendation; that in this connection, they have filed a writ petition before Hon'ble High Court Madras, Madurai Bench to quash the minutes of the District Level Committee issued by the District Collector, Tirunelveli; though no stay order has been issued by the Court, the matter is sub judice and pending with court. Finally he requested for the refund of Rs 4,04,170/- claimed by them" 24. It is submitted that similar findings on facts have been rendered by the Original Authority, which was affirmed by the First Appellate Authority. It is submitted that the petitioner was called upon to produce transport permits which was also not furnished, which establishes that the mining was contrary to G.O.Ms.No.156, Industries (MMD) Department, dated 08.08.2013. 25. The learned counsel for the third respondent has filed a detailed written submissions, which reads as under: PRAYER: The batch of 5 Writ petitions are filed by the petitioners seeking to quash the Common Revision Order Nos.33-39/2022-ST (SZ)/ASRA/MUMBAI dated 21.04 2022 upholding the Order in appeal Nos.63-65 of 2018 dated 27.02.2018 and 311 & 312 of 2019 dated 14.10.2019 and to dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can accrue from an illegal act. EX TURPI CAUSA NON ORITUR ACTIO. 12. As per Section 86 of the Central Excise Act any person aggrieved by an order passed by a Principal Commissioner or Commissioner may file an appeal to the appellate tribunal against such order. Proviso to Section 86 of Finance Act, 1994 states that where an order relating to service which is exported, has been passed under Section 85 and the matter related to grant of rebate of service tax on input services, or rebate of duty paid on inputs, used in providing such services, such an order be dealt with in accordance with provisions of Section 35EE of the Central Excise Act, 1944. The relevant portions of Section 86 of the Finance Act, 1994 is extracted hereunder for your reference: Section 86 Appeals to Appellate Tribunal (1) [Save as otherwise provided herein, an assessee] aggrieved by an order passed by a [Principal Commissioner of Central Excise or] Commissioner of Central Exase under [section 73 or section 83A, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the order]: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is to be read in, nothing is to be implied. One can only look fairly at the language used." 28. This view has been followed by the Hon'ble Supreme Court in Commissioner of Income Tax and another Vs. Yokogawa India Limited reported in (2017) 2 SCC 1 and is often quoted in taxing matters. 29. At the same time, it is noticed that the issue on merits appears to be covered by the decision of the CESTAT, South Zonal Bench, Chenni, in V.V.Minerals Vs. Commissioner of GST and Central Excise, Madurai reported in 2022 (56) G.S.T.L. 167 (Tri.Chennai). 30. The Tribunal has allowed the appeal filed by the appellant with the following observations:- "5. On perusal of the impugned order as well as after hearing the submissions of both sides, I find that the ground for rejection is on an allegation that the appellant has done unlawful mining of raw sand and other minerals in excess of the permission granted to them. This aspect has to be looked into by the Govt. of Tamil Nadu as well as the committee formed for this purpose The provisions of Mines and Minerals Act of the State has to look into the legal consequences of unlawful mining. When the appellant has exported the goods paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, I am of the view that the petitioner was not entitled to export incentive out of the export of goods made out of the illegally mined sea sand. 35. Unless the exports are legitimate, the question of incentivising such exports would not and could not subserve public purpose. The public purpose in Section 93A of the Act would mean those exports which are legitimate and are within the four-corners of the law. Proceeds of crime and proceeds of illegal exports would not enure in favour of the petitioner in the form of rebate/albit refund of service tax borne on services used in the export of goods in violation of G.O(Ms)No.156, Industries (MMD) Department, dated 08.08.2013. 36. That apart, merely because the Custom Department has not taken any punitive action against the petitioner ipso facto would not mean that the petitioner would be entitled to export incentives under Notification No.41/12-ST, dated 29.06.2012 issued under Section 93A of the Finance Act, 1994 Therefore, the Writ Petition is devoid of merits. 37. That apart, the petitioner has approached the wrong forum under Section 86 of the Finance Act, 1994 before the Revisional Authority. The petitioner should have approa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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