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2013 (1) TMI 894 - GUJARAT HIGH COURT

2013 (1) TMI 894 - GUJARAT HIGH COURT - TMI - Special Civil Application No. 10133 of 2012 - Dated:- 24-1-2013 - AKIL KURESHI AND MS SONIA GOKANI, JJ. Mr. Paresh M Dave, Advocate for the Petitioner. Mr. Darshan M Parikh, Advocate and Mr. PS Champaneri, Advocate for the Respondents. ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Heard counsel for the parties for final disposal of the petition. 2. Petitioners have challenged an order dated 07.06.2012, at Annexure-F, to the petition, passed by .....

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e petitioner-company claimed rebate on such excise duty by raising claims with the department from time to time. The exports were made by the petitioner-company through its merchant exporters. It is not in dispute that from the merchant exporters, the petitioner company recovered a total price of ₹ 7.50 Crores (Rounded Off) for such goods. The difference between the price realized by the petitioner-company and of the total value of exports made could be attributed to the merchant exporter .....

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he petitioners claimed as rebate. The petitioner had thus, claimed higher rebate of ₹ 16.78 Lacs (rounded off) and recovered the same from the respondents. On such allegations, show cause notice proposed to recover the excess rebate of ₹ 16.78 Lacs. 2.2. The petitioner company opposed the show cause notice and also appeared before the authority during the hearings. Replies were also filed. Statements of the authorized representatives of the company were recorded. 2.3 Adjudicating aut .....

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raised detailed contentions. 4. However, in view of certain peculiar facts of the case, we do not propose to deal with such contentions at a greater length. 5. Briefly, the case of the petitioner company is that in actual terms, the exports were made worth ₹ 9.44 Crores and ₹ 81.31 Lac excise duty was actually paid on such valuation. The fact that portion of the total export value of ₹ 9.44 Crores comprised of profit/commission or the merchant exporter would not change the posi .....

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applicable at the relevant time, limitation of six months was available with the Department unless the incidence of excise duty not levied, or paid or short levied or short paid or erroneously refunded was on account of reason of fraud or collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules with intent to evade the payment of duty. Counsel submitted that in facts of the case, extended period of limitation was not availa .....

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.2 submitted that this is a case of over invoicing for the purpose of encashing higher amount of cenvat credit. The petitioners had to pay excise duty only on the value of goods realized by it i.e. ₹ 7.50 Crores and could have claimed rebate of such excise duty and no more. He submitted that the details of the goods being sold by the petitioners to the merchant exporters and the value being realized by the petitioners were not available to the Department at the time of processing excess re .....

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n of rebate claim. It is not a case as if the petitioners did not disclose that the goods were exported through merchant exporters and that total value of such exporters came to be ₹ 9.44 Crores. It may be noted that out of such total, export proceeds of ₹ 9.44 Crores, what exact amount was retained by the petitioners and what portion of such sale proceed came in the hands of the merchant exporters by way of commission / profit was not readily available on the record. However, when i .....

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the provisions of the Act or Rules by the petitioners. Longer period of limitation, therefore, would not be available to the Department. 9. We are informed that majority of the rebate claims barring a few fall outside the limitation of six months provide under Section 11-A of the Act, as it stood at the relevant time. Additionally, we also notice that the petitioners did pay the total excise duty of ₹ 81.31 Lacs, which is not in dispute at all. It is this duty which the petitioners claime .....

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