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2016 (6) TMI 357 - GUJARAT HIGH COURT

2016 (6) TMI 357 - GUJARAT HIGH COURT - 2016 (338) E.L.T. 528 (Guj.) - Eligibility of Rebate claim - adjudicating authority is not deciding the matter since the SCN is still pending adjudication - Held that:- having regard to the nature of the directions issued by the revisional authority in its order, no fault can be found in the approach adopted by the second respondent in not deciding the rebate claim till the investigation by DGCEI is concluded and the CCE, Vapi decides the adjudication pend .....

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ith. But further verification could not have been contingent upon the outcome of the other proceedings, namely, the investigation by the DGCEI and the final decision in the classification matter by common adjudicator CCE, Vapi, more so, in the light of the submissions advanced by the petitioners that the revenue has taken two contrary stands as regards classification of the product of Unicorn Industries. In the opinion of this court, when a case comes up before a quasi-judicial authority, it is .....

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to the Call Book to await the decision of the Supreme Court in the SLP filed by the Supreme Court, no fault can be found in the conduct of the petitioner in waiting for a reasonable time for the remanded proceedings to be concluded and then challenging the same in the light of the above facts. For this reason, the above contention does not merit acceptance. - Decided in favour of petitioner - SPECIAL CIVIL APPLICATION NO. 14616 of 2015 With SPECIAL CIVIL APPLICATION NO. 14617 of 2015 - Dated:- 1 .....

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2. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No.14616 of 2015. 3. The petitioner, a Company was engaged in the business of manufacture and export of excisable goods like Mouth Freshner (viz. Pan Masala) at the relevant time, but now the petitioners manufacturing and export business has come to a complete halt on account of severe financial crisis being faced by the petitioners. At the relevant time, the petitioner Company was registered .....

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bulk to retail packs and also labelling of such retail packs had been undertaken by the petitioner Company, which constituted manufacture as contemplated under Chapter Note No.4 of Chapter 21 of the 1st Schedule to the Central Excise Tariff Act, 1985. The petitioner Company was, accordingly, liable to pay excise duty on the goods so manufactured, that is, goods packed in retail packs and affixed with the appropriate label. The petitioner company had export orders of these goods and therefore, w .....

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xporting the goods. The petitioner Company lodged rebate claims in connection with the duties paid on eighty seven consignments of Pan Masala manufactured and exported by it in the month of June, 2011. The total duties paid on the goods exported in June 2011 was ₹ 2,81,33,060/- and hence, the petitioner Company claimed the above aggregate amount of ₹ 2,81,33,060/- as rebate. A show cause notice dated 18.11.2011 came to be issued to the petitioner Company proposing to reject all the r .....

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itioner Company went in appeal before the Commissioner of Central Excise (Appeals), Ahmedabad who allowed the appeal with consequential relief vide Order-in-Appeal dated 19.03.2012. The Excise Department did not accept the order of the Commissioner (Appeals) and filed a revision application against the same before the Joint Secretary, Government of India, New Delhi. The Joint Secretary, Government of India, by the impugned order dated 01.10.2012, held that the case was required to be remanded fo .....

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nt to decide the remanded proceedings, however, to no avail. Recently, by a communication dated 31.07.2015, the petitioners once again requested the second respondent to take up the remanded case for adjudication. Since, the second respondent is not deciding the matter, the petitioner has filed the present petitions seeking the following substantive reliefs: 20. In the above premises, the petitioners most respectfully pray as under: [A] That Your Lordships may be pleased to issue a Writ of Certi .....

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ng the Assistant Commissioner of Central Excise, Division: Gandhinagar, the 2nd respondent herein to forthwith decide the rebate claims of the petitioner Company aggregating to ₹ 2,81,33,060/- for exports made in June, 2011 in accordance with law; [B] That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, holding and declaring that the petitioner s rebate claims were liable to be decided on merits and in accordance with Rule 18 of .....

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he outcome of DGCEI investigation as well as the final decision in classification matter by common adjudicator CCE Vapi. Further, the applicability of condition 2(h) of Notification No.19/04-CE (NT) was also to be examined. Reference was made to the communication dated 26.12.2012 addressed by the Assistant Commissioner, Central Excise Division, Gandhinagar addressed to the Additional Director General, DGCEI, Ahmedabad, calling upon him to intimate him about the outcome of the investigation perta .....

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en transferred to call book and is still lying in the Call Book as the Special Leave Petition (Civil) No.36926 of 2012 filed by the Department is still pending before the Supreme Court. It was submitted that in the light of the pendency of the investigation by DGCEI as well as pendency of the special leave petition before the Supreme Court, the second respondent is not deciding the rebate claim of the petitioners pursuant to the order of remand. It was contended that once the rebate claim is fil .....

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t is manufacturing Pan Masala, whereas in the case pending before the Commissioner, Vapi, it is the case of the respondent that M/s Unicorn Industries is not manufacturing Pan Masala. It was submitted that therefore, non-deciding the rebate claims of the petitioners on the ground of pendency of the SLP before the Supreme Court demonstrates the height of arbitrariness on the part of the respondents, inasmuch as, the proceedings before the Supreme Court would have no bearing on the facts of the pr .....

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dent is not in a position to proceed further in the remand proceedings. It was, accordingly, urged that the petitions deserve to be allowed by setting aside the directions issued by the revisional authority while remanding the matter to the second respondent for fresh decision and that the second respondent is required to be directed to decide the rebate claims at the earliest, in accordance with law. 6. Mr. Darshan Parikh, learned Senior Standing Counsel for the respondents, vehemently opposed .....

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will have to be passed after considering the other proceedings referred to in the said order. It was submitted that the petitioners having acquiesced with the order passed by the revisional authority are now estopped from challenging the same. Commenting on the conduct of the petitioners, it was submitted that the investigation by DGCEI is complete and a show cause notice is issued to the petitioners on 02.01.2015 which is pending adjudication before the Commissioner, Central Excise, Vapi-III, .....

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roceedings is required to be taken into consideration while deciding the rebate claims. It was submitted that the second respondent is not in a position to decide the rebate claims for want of final outcome of DGCEI investigation as well as the final decision in classification matter by common adjudicator, CCE, Vapi in terms of the directions given by the revisional authority. 6.1 The learned counsel further submitted that in case the decision pursuant to the show cause notice issued by the DGCE .....

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to the limited scope of inquiry in the present petitions. 7. In this case, the impugned order is dated 1st October, 2012. Since the revisional authority had merely remanded the matter to the second respondent for a fresh decision, the petitioners did not deem it fit to challenge the same at the relevant time. However, having regard to the fact that though a period of three years has elapsed since then, the remanded proceedings have still not been concluded; the petitioners are constrained to app .....

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er of Central Excise, Vapi. Insofar as the DGCEI investigation is concerned, it is the case of the respondents that the investigation is complete and that a show cause notice has been issued in the matter, which is still pending adjudication. Insofar as the final decision in the classification matter by a common adjudicator viz., Commissioner of Central Excise, Vapi is concerned, the communication dated 30.10.2015 addressed by the Assistant Commissioner (Adj), Central Excise, Customs & Servi .....

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ctly complied with, the petitioners rebate claims would not be decided till the matter is decided by the Supreme Court and thereafter, by the Assistant Commissioner, Central Excise, Customs & Service Tax, Silvassa. 9. The facts as emerging from the record reveal that the petitioners have made rebate claims in June, 2011 which travelled up to the Government of India in revision and by the impugned order dated 01.10.2012, the matter was remanded to the second respondent for a fresh decision, h .....

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concluded and the same are connected proceedings and therefore, he is unable to take any decision regarding sanctioning of refund as no fresh decision can be taken without considering the outcome of the said proceedings. That as the allegations made in the show cause notices against the petitioner are pending adjudication, sanction of refund at this stage would adversely point fingers at the respondent. 10. In the opinion of this court, having regard to the nature of the directions issued by th .....

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d facts as prevailing at the relevant time. The claim cannot be kept pending indefinitely to await the decision in some other matter. While the order of the revisional authority, to the extent the case is remanded for verification is concerned, the same cannot be faulted with. But further verification could not have been contingent upon the outcome of the other proceedings, namely, the investigation by the DGCEI and the final decision in the classification matter by common adjudicator CCE, Vapi, .....

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e proceeding after another. 11. As noted hereinabove, insofar as the investigation by the DGCEI is concerned, the same is concluded and a show cause notice has been issued to the petitioners which is pending adjudication and may take its own time. Insofar as the proceeding before the Commissioner of Central Excise, Vapi is concerned, the concerned authority has transferred the matter to the call-book to await the decision of the Supreme Court in the SLP filed by the Department against the decisi .....

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ome of DGCEI investigation as well as the final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi. The revisional authority may have been justified in issuing directions to take into account the outcome of the DGCEI investigation as well as final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi, had the same already been decided on the date when the matter came to be remanded. However, since the investig .....

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contingent upon the outcome of DGCEI investigation as well as the final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi, cannot be sustained. 12. The submission advanced by the learned counsel for the revenue that in case the decision pursuant to the show cause notice issued by the DGCEI as well as the decision of the CCE, Vapi in the adjudication proceedings are adverse to the petitioners, the interest of the revenue would be adversely affected, .....

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