TMI Blog2019 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... country is considered as an export of goods, therefore, at the most the refund under Rule 5 may not be admissible after 01.03.2015 which is further make it explicit that prior to this amendment refund in respect of export made to 100% EOU was permissible. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 11978 of 2018 - A/11962/2019 - Dated:- 4-10-2019 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Sh. S.J. Vyas (Advocate) for Appellant Sh. G. Jha, Superintendent (AR) for Respondent ORDER PER: RAMESH NAIR The issue involves is that whether the appellant is entitled for refund of accumulated Cenvat Credit under Rule 5 in respect of input used in the manufacture of final product which has been supplied to 100% EOU considering the same as export or otherwise. 2. Sh. S.J.Vyas, Ld. Counsel appearing on behalf of the appellant submits that this issue has been considered by the Hon ble Gujarat High Court in the case of Commissioner of Central Excise Customs vs NBM Industries 2012 (276) ELT 9 (Guj.) and EI Dupont India Pvt. Ltd. vs UOI 2014 (305) ELT 282 (Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot record the submissions at length since we find that similar issue was considered by a Division Bench of this Court in Tax Appeal No. 968 of 2008 [2011 (269) E.L.T. 17 (Guj.)]. One of the questions posed before the Court was as follows : (i) Whether in the facts and circumstances of the case, the Tribunal is justified and has committed a substantial error of law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) holding that the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004? 3. The Division Bench after taking into account the detail submissions of the counsel appearing for the parties held and observed as under : 14. We have heard the learned Counsel appearing for the parties and after considering their submissions, we are of the view that the issue raised by the Revenue in the present Tax Appeal is squarely covered by the decision of Amitex Silk Mills Pvt. Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch less any substantial question of law, arises out of the order of the Tribunal and even if it arises, the answer is very obvious and we, therefore, hold that the Tribunal is justified and has not committed any substantial error of law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) holding that the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004. 4. Counsel for the Revenue, however, submitted that a Division Bench of the Madras High Court in the case reported in 2007 (211) E.L.T. 23 (Mad.) has taken a different view. We find that the decision of this Court being directly on the issue, we are bound by the said decision. Further we find that the Apex Court in the case of Virlon Textile Mills Ltd. v. Commissioner of C. Ex., Mumbai, 2007 (211) E.L.T. 353 (S.C.), though not in identical situation while examining the nature of DTA sales to 100% export oriented units observed that DTA sales against foreign exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for refund of credit under Rule 5 of Cenvat Credit Rules 2004 and relied upon the Gujarat High Court s decision in case of NBM Industries and they produced the copy of said case law. In this regard I find that in the case of Mafatlal Ind. Ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.), the Supreme Court has ruled that it is not open to any person to make a refund claim on the basis of a decision of a Court or a Tribunal rendered in the case of another person. Each one must fight his own battle and must succeed or fail in such proceedings. Further the Apex court held that An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee s case, a similar point is decided in favour of the manufacturer/assessee. It clearly means that an assessee cannot claim refund of any duty on the basis of a favourable appellate judgement in case of an another assessee. In the present case, the claimant has relied upon the case law of an another assessee i.e. M/s. NBM Industries which cannot be accepted as a Ruling as per the above direction of H ble Supreme Court in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch decision of the Tribunal would be binding on the Adjudicating Authority. Even if the Department is of the opinion that the issue is not free from doubt, it is not open for the Adjudicating Authority to ignore the binding precedent. We may notice that under the Central Excise Act, 1944 and the Customs Act, the Department has the right to appeal even against the order in original passed by the Adjudicating Authority. This is in contrast to the provisions contained in the Income Tax Act, 1961 where against an order passed by the Assessing Officer, the Department has no right to appeal. Only remedy available to the Revenue is by way of a revision against the order of the Assessing Officer that too only if it is found that such order is erroneous and prejudicial to the interest of the Revenue. Such rigors, however, are not applicable in so far as the Department s right to appeal against the order of the Adjudicating Authority is concerned under the Central Excise Act, 1944. 8. The Adjudicating Officer acts as a quasijudicial authority. He is bound by the law of precedent and binding effect of the order passed by the higher authority or Tribunal of superior jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer. He has only to bring the matter to the notice of the Board or the Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in (1978) 19 GLR 378. 5.4 In the recent decision in the case of Claris Lifesciences Ltd. (supra), when despite the binding decision of the Tribunal, the adjudicating authority issued the show-cause notice, relying upon the decision of the Hon ble Supreme Court in the case of Kamlakshi Finance Corporation Ltd. (supra), we have observed in para 26 as under : 26. Despite such clear and specific directions and authoritative pronouncements, act of issuance of show cause notice by the Deputy Commissioner is wholly impermissible and unpalatable and deserves to be quashed and struck down with a specific note of strong disapproval. The respondents simply could not have exercised the powers contained under the statute in such arbitrary exercise and in complete disregard to the pronouncement of this Court particularly reminding the Revenue authorities of the binding effect of decision of Tribunal on the identical question of law. This not only led to multiplicity of proceedings but also speaks of disregard to the direction of this Court rendered in the earlier petition of this very petitioner. Resultantly, petition stands allowed. Both the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(2b) of the Contempt of Courts Act, 1971. Similar view has been expressed by the Bombay High Court in the case of Legrand (India) Pvt. Ltd. (supra). Considering the aforesaid decisions of the Hon ble Supreme Court as well as this Court, it can be prima facie said that not following the decision of this Court in the case of NBM Industries (supra) by the respondent No. 4 herein would amount to civil contempt. The submission of Shri R.J. Oza, learned Senior Standing Counsel appearing on behalf of the respondent No. 4 that there was no other intention on the part of Respondent No. 4 in not following the decision of this Court in the case of NBM Industries (supra) except to protect the interest of revenue is concerned, as such under the guise of protecting the interest of revenue, the lower authority cannot be permitted to ignore the binding decision of the higher appellate authorities/courts. Everybody is bound by law. To maintain the rule of law and judicial discipline, the lower authority is bound by the decision of the higher appellate authorities/courts. However, considering the fact that there is no other mala fide alleged and that the Respondent No. 4 is reported to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not only led to multiplicity of proceedings but also speaks of disregard to the direction of this Court rendered in the earlier petition of this very petitioner. Resultantly, petition stands allowed. Both the show cause notices dated 21-8-2012 and 22-1-2013 are quashed and struck down. It appears that still the message has not reached the concerned authorities in following the binding decisions of the higher appellate authorities and/or courts solely on the ground that the same is in the case of another assessee. Such a conduct is also required to be viewed from another angle. This would not only amount to disregarding the direction of the court rendered in earlier petitions but would also lead to multiplicity of proceedings. When the courts are overburdened and are accused of arrears, it is the duty of the concerned authorities to avoid multiplicity of proceedings and lessen the burden of the Courts. Being a part of the justice delivery system, all efforts should be made by the authorities/quasi judicial authorities and judicial authorities to see that there is no multiplicity of proceedings and to pass the orders considering the binding decisions. It would als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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