{"id":91582,"date":"2011-06-28T00:00:00","date_gmt":"2011-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-through-vs-ms-sheetal-exports-anr-on-28-june-2011"},"modified":"2017-10-17T23:30:17","modified_gmt":"2017-10-17T18:00:17","slug":"union-of-india-through-vs-ms-sheetal-exports-anr-on-28-june-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-through-vs-ms-sheetal-exports-anr-on-28-june-2011","title":{"rendered":"Union Of India Through vs M\/S. Sheetal Exports & Anr on 28 June, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Union Of India Through vs M\/S. Sheetal Exports & Anr on 28 June, 2011<\/div>\n
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta<\/div>\n
    vbc                                      1                              wp3959.10-28.6.sxw\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                         CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                                    \n                      WRIT PETITION NO.3959  OF 2010\n\n\n\n\n                                                            \n    Union of India through \n    Commissioner of Central Excise, Mumbai-I.                  ..Petitioner.\n\n\n\n\n                                                           \n                      Versus\n    M\/s. Sheetal Exports & Anr.                                ..Respondents.\n                                          .....\n    Mr.M.I.Sethna,   Senior   Advocate   with   Mr.Pradeep   S.Jetly   and \n\n\n\n\n                                                \n    Mr.Jitendra B.Mishra for the Petitioner.\n    Mr.Prakash   Shah   with   Mr.Jas   Sanghavi   i\/b.   M\/s.PDS   Legal     for   he \n                              \n    Respondent No.1.\n                                         ......\n                             \n                         CORAM :  DR.D.Y.CHANDRACHUD AND\n                                     ANOOP V. MOHTA, JJ.\n<\/pre>\n
                                       28 June 2011.\n<\/p>\n
    ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.)  :\n<\/p>\n
                  This petition by the Union of India  under Article 226 of <\/p>\n
    the   Constitution,   is   to   challenge   an   order   passed   by   the   revisional <\/p>\n
    authority  in exercise of jurisdiction under Section 35EE of the Central <\/p>\n
    Excise Act, 1944.   The Assistant Commissioner had initially rejected <\/p>\n
    rebate claims preferred by the First Respondent in the amount of Rs.\n<\/p>\n
    13.57 lakhs.  In appeal, the Commissioner  remanded the proceedings <\/p>\n
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\n     vbc                                     2                              wp3959.10-28.6.sxw<\/p>\n
    back   to   the   adjudicating   authority   for   reconsideration,   after <\/p>\n
    complying   with   the   principles   of   natural   justice.     The     First <\/p>\n
    Respondent   challenged   that   order   of   remand   before   the   revisional <\/p>\n
    authority.  By the order impugned in these proceedings, the revisional <\/p>\n
    authority   has   come   to   the   conclusion   that   the   First   Respondent   is <\/p>\n
    entitled to claim rebate.  The revisional application has been allowed.\n<\/p>\n
    The Union of India has impugned that order.\n<\/p>\n
    2.<\/p>\n
                  The   First   Respondent   is   a   merchant   exporter.     The <\/p>\n
    manufacturer   of   the   goods   in   question   was   Radha   Dyeing   and <\/p>\n
    Printing Mills.  The manufacturer claimed Cenvat Credit in respect of <\/p>\n
    duty paid inputs alleged to have been purchased by the manufacturer <\/p>\n
    from   an   input   supplier.     The   First   Respondent   purchased   finished <\/p>\n
    goods from the manufacturer which in turn were exported by the First <\/p>\n
    Respondent.   As against that export, the First Respondent claimed a <\/p>\n
    rebate of central excise duty.\n<\/p>\n
    3.            Rule 18 of the Central Excise Rules, 2002 provides that <\/p>\n
    where   any   goods   are   exported,   the   Central   Government   may,   by <\/p>\n
    notification, grant rebate of duty paid on such excisable goods or duty <\/p>\n
    paid   on   materials   used   in   the   manufacture   or   processing   of   such <\/p>\n
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\n     vbc                                      3                              wp3959.10-28.6.sxw<\/p>\n
    goods   and   the   rebate   shall   be   subject   to   such   conditions   or <\/p>\n
    limitations,   if   any,   and     fulfillment   of   such   procedure,   as   may   be <\/p>\n
    specified in the notification. The First Respondent  claimed rebate on <\/p>\n
    the basis that it had exported goods and the rebate was in respect of <\/p>\n
    duty alleged to have been paid by Radha Dyeing and Printing Mills.\n<\/p>\n
    4.            The   Assistant   Commissioner   while   rejecting   the <\/p>\n
    application for the grant of rebate noted that between the period May <\/p>\n
    2003   and   November   2004,   Radha   Dyeing   and   Printing   Mills   had <\/p>\n
    wrongly availed of credit to the extent of Rs.5.41 crores on the basis <\/p>\n
    of   documents   issued   by   various   bogus   firms   and   had   cleared   the <\/p>\n
    goods  by availing of   Cenvat Credit.     The Assistant Commissioner <\/p>\n
    held that the exported goods could not be said to be  duty paid goods.\n<\/p>\n
    The First Respondent was furnished an opportunity to put forth its <\/p>\n
    explanation,   but   had   not   appeared   at   the   personal   hearing.\n<\/p>\n
    Accordingly, the claim for the grant of rebate was disallowed.\n<\/p>\n
    5.            In appeal, it was argued by the First Respondent that the <\/p>\n
    claim for the grant of rebate had been wrongfully rejected without <\/p>\n
    ascertaining   the   role   that   was   played   by   the   First   Respondent.\n<\/p>\n
    According to the First Respondent, its claim was rejected on the basis <\/p>\n
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\n     vbc                                      4                              wp3959.10-28.6.sxw<\/p>\n
    of an alleged fraud or misrepresentation by the manufacturer or its <\/p>\n
    supplier.  It was urged that action for the availment of Cenvat Credit <\/p>\n
    on a wrongful basis could be taken against the manufacturer, but not <\/p>\n
    against the First Respondent in the absence of material to indicate an <\/p>\n
    act of abetment by the First Respondent.\n<\/p>\n
    6.            The Commissioner (Appeals) noted that the manufacturer, <\/p>\n
    Radha Dyeing and Printing Mills received raw materials from units <\/p>\n
    which either did not exist or had issued  bogus Cenvat documents.  If <\/p>\n
    the   documents   were   from   non-existent   firms,   there   could   be   no <\/p>\n
    accumulation of credit in the account. Hence, if   no credit balance <\/p>\n
    was   properly   available   to   discharge   the   duty   on   finished   goods,   it <\/p>\n
    could   not   be   held   that   the   goods   exported   were   duty   paid   goods.\n<\/p>\n
    However, the Commissioner (Appeals) noted that though 4 ARE forms <\/p>\n
    were involved, the First Respondent had neither submitted its reply <\/p>\n
    nor had it appeared before the Assistant Commissioner for a personal <\/p>\n
    hearing.   The First Respondent was furnished an opportunity in the <\/p>\n
    interests   of   justice   by   the   Commissioner   (Appeals)   for   producing <\/p>\n
    relevant evidence before the Assistant Commissioner.   It was, in this <\/p>\n
    view of the mater that the proceedings were remanded back to the <\/p>\n
    Assistant Commissioner.\n<\/p>\n
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     vbc                                     5                              wp3959.10-28.6.sxw<\/p>\n
    7.            The   First   Respondent   challenged   the   order   of   the <\/p>\n
    Commissioner   (Appeals)   before   the   revisional   authority.     The <\/p>\n
    revisional   authority   was   of   the   view   that   if   the   manufacturer   had <\/p>\n
    obtained   Cenvat   Credit   wrongfully,   Rule   14   of   the   Cenvat   Credit <\/p>\n
    Rules, 2004 enables the Central Government to recover the amount <\/p>\n
    wrongfully availed of together with interest.  However, the revisional <\/p>\n
    authority was of the view that the First Respondent   had bona fide <\/p>\n
    purchased  and  exported  the   goods  after  the   payment  of  the  entire <\/p>\n
    amount,   inclusive   of   duty   and   cannot   be   penalised   by   denying  his <\/p>\n
    claim for rebate  when there is no evidence to show any mutuality of <\/p>\n
    interest,  financial control or  flow back of funds.  In taking this view, <\/p>\n
    the revisional authority relied upon its decision in the case of Shyam <\/p>\n
    International decided on 18 May 2007.\n<\/p>\n
    8.            Counsel appearing on behalf of the Petitioner   has taken <\/p>\n
    serious exception to the manner in which the revisional authority has <\/p>\n
    proceeded in the case.   Before we deal with the other submissions <\/p>\n
    which have been urged before the Court we are inclined to accept the <\/p>\n
    submission that the entire  approach of  the  revisional authority  has <\/p>\n
    been   misconceived.       The   revisional   authority  has  transgressed  the <\/p>\n
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\n     vbc                                     6                              wp3959.10-28.6.sxw<\/p>\n
    settled limitations on the exercise of the revisional jurisdiction under <\/p>\n
    Section   35EE.       The   First   Respondent   neither   appeared   before   the <\/p>\n
    Assistant Commissioner, nor had it chosen to produce any material <\/p>\n
    whatsoever   that   would   establish   the     bona   fides   nature   of   its <\/p>\n
    transaction.     The   Assistant   Commissioner   noted   that   despite <\/p>\n
    opportunity,   the   First   Respondent   had   not   appeared   in   the <\/p>\n
    proceedings.   The Assistant Commissioner found that Radha Dyeing <\/p>\n
    and   Printing   Mills   had   wrongfully   availed   of   Cenvat   Credit   in   the <\/p>\n
    amount of Rs.5.41 crores between May 2003 and November 2004 on <\/p>\n
    the basis of documents issued by  bogus firms.  When the matter went <\/p>\n
    in   appeal   to   the   Commissioner   (Appeals),   the   Appellate   Authority <\/p>\n
    was of the view that in the   interests of justice,   liberty should be <\/p>\n
    granted to the First Respondent to establish its case for the grant of <\/p>\n
    rebate   before   the   adjudicating   authority.     The   proceedings   were <\/p>\n
    remanded back to the Assistant Commissioner.  Instead of availing of <\/p>\n
    this opportunity which was furnished by the Commissioner (Appeals), <\/p>\n
    the First Respondent moved the revisional authority against an order <\/p>\n
    of remand which was passed in order to afford an opportunity to the <\/p>\n
    First   Respondent   to   produce   evidence   and  submissions.     In   such   a <\/p>\n
    revisional application, the revisional authority proceeded to enter a <\/p>\n
    finding  of   fact   that   the   First   Respondent   had   purchased   the   goods <\/p>\n
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\n     vbc                                     7                              wp3959.10-28.6.sxw<\/p>\n
    bona fide and having exported the goods on the payment of the entire <\/p>\n
    amount inclusive of duty, the First Respondent cannot be penalized by <\/p>\n
    denying the claim for rebate.   There is merit in the submission that <\/p>\n
    the revisional authority ought not to have rendered such a finding of <\/p>\n
    fact, for the first time, in the exercise of the revisional jurisdiction, <\/p>\n
    particularly having regard to the background of the case which has <\/p>\n
    already been noted earlier.\n<\/p>\n
    9.<\/p>\n
                  What we have observed above assumes some significance <\/p>\n
    having   regard   to   the   nature   of   the   submissions   which   have   been <\/p>\n
    urged before the Court by Counsel appearing on behalf of the Union <\/p>\n
    of India.  Counsel has adverted to the fact that a Show Cause Notice <\/p>\n
    had been issued to Radha Dyeing and Printing Mills on 24 April 2008.\n<\/p>\n
    The   show   cause   notice   inter   alia   contained   an   allegation   that   the <\/p>\n
    transactions which had been put into place, were made to camouflage <\/p>\n
    dubious transactions undertaken in collusion with various groups of <\/p>\n
    suppliers. Alert circulars were issued by the Department declaring the <\/p>\n
    units from which inputs have been purchased by Radha Dyeing and <\/p>\n
    Printing Mills to be dubious\/fake and it is alleged that the  Units were <\/p>\n
    floated to cushion  a chain of passing inadmissible cenvat credit with <\/p>\n
    each of these entities in a syncronized manner both at the upstream <\/p>\n
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\n     vbc                                      8                              wp3959.10-28.6.sxw<\/p>\n
    and down stream stage of the cenvat chain.  A thin structure of bank <\/p>\n
    transactions   is   alleged   to   have   been   put   into   place   to   effect   the <\/p>\n
    ultimate design.   Cenvat Credit was alleged to have been availed of <\/p>\n
    for the removal of finished goods for home consumption or for export <\/p>\n
    on   the   basis   of   invalid   documents.     The   total   Cenvat   Credit   thus <\/p>\n
    availed of is alleged to be in the amount of Rs.16.22 crores.  Since the <\/p>\n
    notice to show cause is pending adjudication,  we must clarify that we <\/p>\n
    have   not   made   any   observations   on   the   merits   of   the   allegations.\n<\/p>\n
    Counsel appearing on behalf of the Petitioner  has also adverted to an <\/p>\n
    order passed by the Commissioner of Central Excise in certain other <\/p>\n
    proceedings   on   29   January   2010.     Counsel   has   taken   us   through <\/p>\n
    various parts of the order inter alia to highlight the submission that <\/p>\n
    the role of the First Respondent in the entire chain of events   has <\/p>\n
    come under scrutiny.\n<\/p>\n
    10.           We   are   not   inclined   in   these   proceedings,   particularly <\/p>\n
    having regard to the limitations on the exercise of the writ jurisdiction <\/p>\n
    of this Court under Article 226 of the Constitution, to investigate into <\/p>\n
    all   the   factual   allegations.     The   exercise   of     judicial   review   must <\/p>\n
    follow along the well settled principles.  The Court under Article 226 <\/p>\n
    would   interfere where, as in this case,   there has been a manifest <\/p>\n
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\n     vbc                                       9                              wp3959.10-28.6.sxw<\/p>\n
    error   or   misdirection   on   the   part   of   a   quasi   judicial   authority   in <\/p>\n
    exercising its jurisdiction.  The revisional authority in the present case <\/p>\n
    was called upon to exercise its jurisdiction against an order of remand <\/p>\n
    passed by the Appellate Authority.   The order of remand was with a <\/p>\n
    view to enable the First Respondent to have an adequate opportunity <\/p>\n
    to substantiate its case for the grant of rebate, despite the fact that the <\/p>\n
    adjudicating   authority   had   denied   the   rebate   on   the   ground   that <\/p>\n
    Cenvat   credit   had   been   wrongfully   availed   of   on   the   basis   of <\/p>\n
    documents which were fraudulently obtained from Units which were <\/p>\n
    found  to   be   non-existent   or   bogus.     Rule   18   of   the   Central   Excise <\/p>\n
    Rules, 2002 provides that when any goods are exported, the Central <\/p>\n
    Government may by notification grant rebate of  duty paid  on such <\/p>\n
    excisable goods.   Whether duty on the excisable goods has, in fact, <\/p>\n
    been paid to be determined.     According to the Excise Department, <\/p>\n
    the duty has not, in fact, been paid.  The duty was sought to be paid <\/p>\n
    by utilising Cenvat credit.  The Cenvat credit  was accumulated on the <\/p>\n
    basis   of   duty   paid   documents   brought   up   in   collusion   with   non-\n<\/p>\n
    existent or bogus firms.  These allegations  would have to be enquired <\/p>\n
    into by the adjudicating authority.  We are, therefore, of the view that <\/p>\n
    the proper course of action for the revisional authority would have <\/p>\n
    been to allow the order of remand to stand so as to enable the First <\/p>\n
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\n     vbc                                       10                               wp3959.10-28.6.sxw<\/p>\n
    Respondent to have a full and proper opportunity of establishing its <\/p>\n
    case   for   the   grant   of   rebate.     Instead   the   revisional   authority   has <\/p>\n
    purported to make a finding of fact in the absence of virtually any <\/p>\n
    material whatsoever and in the face of the case of the Department <\/p>\n
    that the chain of events in the present case will show a fraudulent <\/p>\n
    attempt to evade the payment of duty.     Hence, we are of the view <\/p>\n
    that the order passed by the revisional authority is unsustainable.\n<\/p>\n
    11.<\/p>\n
                  We accordingly quash and set aside the impugned order <\/p>\n
    passed by the Joint Secretary in the Ministry of Finance, dated 10 July <\/p>\n
    2009.  We maintain the order passed by the Commissioner (Appeals), <\/p>\n
    remanding   the   proceedings   back   to   the   Assistant   Commissioner <\/p>\n
    (Rebate), Central Excise-I.\n<\/p>\n
    12.           During   the   course   of   the   hearing,   the   Court   has   been <\/p>\n
    informed that after the revisional authority had passed the impugned <\/p>\n
    order   dated   10   July   2009,   allowing   the   application   of   the   First <\/p>\n
    Respondent for the grant of rebate, a Writ Petition was filed in this <\/p>\n
    Court   (Writ   Petition   2114   of   2010)   on   17   March   2010,   seeking <\/p>\n
    enforcement of the order of the revisional authority and the grant of <\/p>\n
    rebate in the amount of Rs.13,57,200\/-.  The Department has, in the <\/p>\n
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\n     vbc                                        11                                wp3959.10-28.6.sxw<\/p>\n
    present petition as amended, averred that during the pendency of the <\/p>\n
    petition, the First Respondent was paid an amount of Rs.13,57,200\/-\n<\/p>\n
    by a cheque dated 26 March 2010, following which the Petition was <\/p>\n
    withdrawn.   In amended paragraph 8 in the present petition, it has <\/p>\n
    been averred that when the earlier petition came up before the Court, <\/p>\n
    Counsel appearing on behalf of the Union of India  apprised the Court <\/p>\n
    of the fact that the Department was in the process of filing a Writ <\/p>\n
    Petition to challenge the impugned order dated 10 July 2009.  All that <\/p>\n
    remains for us to observe and direct would be that since the amount <\/p>\n
    of Rs.13,57,200\/- was paid to the First Respondent in pursuance of <\/p>\n
    the order of the revisional authority dated 10 July 2009, which has <\/p>\n
    now been set aside, the Petitioner would be at liberty to recover the <\/p>\n
    amount. The recovery if made, however, shall abide by the final result <\/p>\n
    of the proceedings before the Assistant Commissioner in terms of the <\/p>\n
    directions issued in the earlier part of this order.     Having regard to <\/p>\n
    the   time   that   has   elapsed   in   the   meantime,   we   direct   that   the <\/p>\n
    adjudicating   authority   shall   decide   upon   the   rebate   application <\/p>\n
    expeditiously and within a period of three months from the date on <\/p>\n
    which   a   certified   copy   of   this   order   is   placed   on   the   file   of   the <\/p>\n
    adjudicating authority.\n<\/p>\n
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     vbc                               12                            wp3959.10-28.6.sxw<\/p>\n
    13.         Rule is made absolute in the aforesaid terms.  There shall <\/p>\n
    be no order as to costs.\n<\/p>\n
                                            ( Dr.D.Y.Chandrachud, J.)<\/p>\n
                                             ( Anoop V. Mohta, J.)<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:24:34 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Union Of India Through vs M\/S. Sheetal Exports & Anr on 28 June, 2011 Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta vbc 1 wp3959.10-28.6.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3959 OF 2010 Union of India through Commissioner of Central Excise, Mumbai-I. ..Petitioner. Versus M\/s. Sheetal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-91582","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUnion Of India Through vs M\/S. Sheetal Exports & Anr on 28 June, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-through-vs-ms-sheetal-exports-anr-on-28-june-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India Through vs M\/S. 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