TaxTMI 
TaxTMI 
2019 (12) TMI 1057
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.... Jumbo Bags Ltd. 2011 (268) ELT 81 (Tri. Chennai) * Essar Steel Ltd. 2010 (249) ELT 3 (Guj.) * Sai Wardha Power Ltd. 2016 (332) ELT 529 (Tri. LB) * UOI vs Essar Steel Ltd. 2010 (255) ELT A115 (SC) 4. Heard both the sides and perused the records. I find that the issue to be decided is that whether the supply to 100% EOU is considered as export for the purpose of refund under Rule 5 of Cenvat Credit Rules, 2002. The very same issue has been considered by the Hon'ble Gujarat High Court in the case of NBM Industries (Supra) wherein the Hon'ble Court has passed the following order: "Revenue is in appeal against the judgment of the Tribunal dated 6th March 2009 [2009 (246) E.L.T. 252 (Tribunal)] raising following questions for our consideration : "(i) Whether the Tribunal was right in allowing refund of the Cenvat credit availed on inputs used in the manufacture of goods cleared by DTA unit to a 100% Export Oriented Unit, following CT-3/ARE-3 procedure, where the provisions of Rule 5 of the Cenvat Credit Rules, 2004 are not applicable, such clearance being 'deemed export'? (ii) Whether the Tribunal was right in allowing refund of the Cenvat credit availed on inputs used in t....
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....unal in the case of Ginni International Ltd. (supra) was also challenged before the Apex Court and the Apex Court vide decision reported in 2007 (215) E.L.T. A102 (S.C.) held while dismissing the Revenue's appeal against the Tribunal's order, that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. It is also important to note that the decision of the Tribunal in the case of Sanghi Textiles Ltd. v. Commissioner of Customs & Central Excise (supra) was also challenged by the Revenue before the Apex Court and the Apex Court vide order dated 16-8-2007 dismissed the Revenue's appeal. While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it h....
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....ch there is a direct binding decision of this Court in the case of NBM Industries (supra) which is in favour of the assessee holding that on inputs used in manufacture of goods cleared by TDA units to 100% EOU refund of CENVAT credit would be available to the assessee and it would not be denied on the ground that it was the case of deemed export and refund could be granted only in case of physical export. It is also required to be noted that in the said decision the revenue pressed into service the decision of the Madras High Court in the case of BAPL Industries Ltd. (supra) [which has been relied upon by the adjudicating authority in the present case] and the Division Bench after considering the said decision held as stated hereinabove. Despite the decision of this Court in the case of NBM Industries (supra) was pressed into service by the claimant and was pointed out to the adjudicating authority, which is a binding decision upon adjudicating authority, the adjudicating authority has not followed the said decision solely on the ground that the said decision is not in the case of assessee but is in the case of another assessee and the adjudicating authority has further observed th....
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....s the same is in case of another assessee. It appears that the respondent No. 4 has not properly understood the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra). In the case of Mafatlal Industries Ltd. (supra), the Hon'ble Supreme Court has never held that a decision of the higher appellate authorities/courts which may be in the case of another assessee are not binding to the lower authorities, on the ground that the same is in the case of another assessee. It is also not held by the Hon'ble Supreme Court that it is not open for a person to make refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. On the contrary, there are direct decisions of the Hon'ble Supreme Court as well as various High Courts. 5.2 In the case of Kamlakshi Finance Corporation Ltd. (supra), in paras 7 to 10, the Hon'ble Supreme Court has held and observed as under : "7. Having heard learned Counsel for the parties, we are of the opinion that the approach adopted by the Adjudicating Authority was wholly impermissible in law. At the outset, we may record that we are conscious that such order is appealable in terms of statu....
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....osing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35D confers adequate powe....
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....ermissible to the Department. Petition is disposed of accordingly." 5.3 In the case of Legrand (India) Pvt. Ltd. (supra), the Bombay High Court has held as under : (a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and Tribunals in the State; (b) The law laid down by the High Court must be followed by all authorities and subordinate Tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding; (c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971. In the said decision, the Bombay High Court has relied upon the decision of the Hon'ble Supreme C....
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....upra). We strongly disapprove the observation made by the adjudicating authority that the decision of this Court in the case of NBM Industries (supra) is not a ruling as it is in the case of another assessee. The decision of this Court in the case of NBM Industries (supra) though may be in the case of another assessee is binding to Respondent No. 4. Under the circumstances, despite the alternative remedy available to the petitioner, we have to interfere with the impugned orders in exercise of powers under Article 226 of the Constitution of India. 5.5 As such by not following the binding decision of this Court in the case of NBM Industries (supra), the Respondent No. 4 - adjudicating authority has rendered herself liable for the prosecution/proceedings under the Contempt of Courts Act. Identical question came to be considered by the Division Bench of this Court in the case of the Secretary, Labour, Social Welfare & Tribal Development Dept., Sachivalaya, Gandhinagar and Anr. (supra) and considering the observations made by the Hon'ble Supreme Court in the case of East India Commercial Co. Ltd. (paras 9 and 10) (supra); in the case of Makhan Lal (para 9) (supra); in the case of Bara....
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.... present order and to make the actual payment within a period of four weeks thereafter and also grant consequential reliefs which may be available to the petitioners under the relevant provision of the rules more particularly Rule 5 of the Rules. 6.1 Before parting with the present order, we are constrained to strongly disapprove such arbitrary act on the part of the lower adjudicating authority and/or lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Time and again the Hon'ble Supreme Court as well as various High Courts and this Court have disapproved such conduct/act on the part of the lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Still it appears that message has not reached the concerned authorities. In the recent decision in the case of Claris Lifesciences Ltd. (supra) in para 26 this Court has observed 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 spec....