TaxTMI 
TaxTMI 
2024 (7) TMI 554
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....er in Appeal No.MAD-CEX-000-APP-311 and 312/2019 dated 14.10.2019. 3. In these writ petitions, the challenge to the impugned orders are confined to the following orders: S.No. Writ Petition No Date of impugned order Impugned order No 1 17429 of 2022 19.04.2024 33/2022-ST (SZ)/ASRA/MUMBAI 2 17430 of 2022 19.04.2024 37/2022-ST (SZ)/ASRA/MUMBAI 3 17431 of 2022 19.04.2024 35/2022-ST (SZ)/ASRA/MUMBAI 4 17432 of 2022 19.04.2024 34/2022-ST (SZ)/ASRA/MUMBAI 5 17433 of 2022 19.04.2024 36/2022-ST (SZ)/ASRA/MUMBAI 4. They arise out of Orders at Serial Nos.1 and 3 passed by the Appellate Commissioner, namely the Commissioner of Central Excise (Appeals-I), Madurai, details of which are below: S. No Order of the Commissioner of Central Excise (Appeals-I), Madurai. Order In Original No/Date 1 MAD-CEX-000-APP-063 to 065-2018 dated 27.02.2018 (appeal Nos.198/200/2017-ST(TVL) 25/2017 (ST)(REF), 26/2017(ST)(REF) and 27/2017 (ST)(REF), all dated 11.05.2017 2 309 & 310/2019 dated 14.10.2019 .......... 3 311 & 312/2019 dated 14.10.2019 (Appeal No.51 and 52/2019-ST 06/2019(ST)(REF), dated 21.....
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....aid goods; ........" 8. The rebate claims for refund of service tax borne by the petitioner in the course of export of garnets extracted out of illegally mined sea sand were rejected by the Rebate Sanctioning Authority. Further appeals were also rejected by the second respondent. Details of 5 different Orders in Originals and Orders in Appeals are as detailed below: S.No Period involved Amount (Rs.) Status Order in Original Date Appeal Order 1 Oct-2015 to Dec-2015 4,04,170 Rejected 25/2017 11.05.2017 MAD-CEX-000-APP-063 to 065-2018 dated 27.02.2018 2 Jan-2016 to March-2016 6,23,379 Rejected 26/2017 11.05.2017 3 April-2016 to June-2016 6,22,060 Rejected 27/2017 11.05.2017 4 July 2016 to Sep 2016 6,36,518 Rejected 06/2019 21.02.2019 MAD-CEX-000-APP-311-2019 dated 14.10.2019 5 Oct 2016 to Dec 2016 3,94,131 Rejected 07/2019 28.02.2019 MAD-CEX-000-APP-312-2019 dated 14.10.2019 9. The case of the petitioner before this Court is that the issue is no longer res integra and is covered by a decision of the CESTAT, South Zonal Bench, Chenni, in V.V.Minerals Vs....
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....9;s company also holds IEC Code Number 2888001691, which is a prerequisite for imports and exports under the Foreign Trade Policy read with Foreign Trade Development and Regulation Act, 1992 (FTDRA). 2. The Petitioner purchased finished Garnet from M/s Manickam Minerals (one of its Group firm, who mines the beach mineral viz. Garnet sand and process the same into Garnet). It also Purchased finished Garnet from M/s Indian Rare Earths Ltd-a unit of Govt of India. The purchased Garnets were packed in jumbo bags and exported to various countries. The exports were done following all the processes under the Customs Act. Shipping Bills were filed under Section 50 of the Customs Act, 1962, Let Export Order were endorsed by the proper officer under Section 51 ibid. The export proceeds by way of foreign exchange were received through proper banking channels as prescribed by the Reserve bank of India and the banks have issued Bank Realisation Certificates (BRC). 3. The Petitioner's company, in the process of export of Garnet had availed the services of Clearing & Forwarding Agents, Material handling services at port terminals, and Goods Transport Agency Services on payment o....
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....019 dated 14.10.2019 8. The Petitioner approached the Revision Authority under Section 35 EE of the Central Excise Act, 1944 made applicable to Finance Act, 1992 and filed appeals against all the Orders-in Appeal passed by the Commissioner (Appeal) detailed above with the Principal Commissioner- Revision Authority and Ex-Officio Additional Secretary to the Government of India, Mumbai. 9. The Revision Authority vide his Order 33-39 dated 21.04.2022 issued in F.No. 196/14-16/SZ/2018/RA and F.No. 196/16- 19/SZ/2019 rejected the petitioner's appeal on the ground that the exports were illegal and up-held the Orders-in-Appeals Nos MADCEX-000 APP 63 to 65-2018 dated 27.02.2018 and No 311 & 312 /2019 dated 14.10.2019 passed by the Commissioner (Appeals). 10. The petitioner respectfully submits that there are no appeal 4 provisions envisaged in Central Excise Act, 1944 or Finance Act, 1994 for filing appeal against the decision of the Respondent 1. Therefore, the petitioner filed these writ petitions before this Hon'ble high Court. 11. The petitioner submits that the department in the counter affidavits only on ground of jurisdiction that the petition....
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....of their knowledge the department has not filed appeal against the said orders. 18. The petitioner submits on similar situations was considered in c. Commissioner of Income Tax vs. Piara Singh reported in 1980 AIR 1271 SC - (in page no.194-197 of the typeset) d. Commissioner of Income Tax, Erode vs. TK. Thangamani (Hon'ble Madras High Court) - (in page no.198-206 of the Typeset) In view of the above, the petitioner prays before the Hon'ble High court to allow the writ petition and thus render justice." 16. Defending the impugned orders, the learned Senior Standing Counsel for the respondents would submit that the petitioner invited the order of the respondents. It is submitted that against the order of the Appellate Commissioner, the petitioner ought to have filed an appeal before the CESTAT in terms of proviso to Section 86 of the Finance Act, 1994. 17. It is submitted that instead of filing a statutory appeal under Section 86 of the Finance Act, 1994, the petitioner approached the first respondent as Revisional Authority under Section 35(EE), which applies only to rebate claims under the provisions of the Central Excise Rules, 2002, read ....
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....013 and G.O (MS) No. 173 dated 17.09.2013 on mining of beach sand minerais under the chairmanship of District Collector Tirunelveli in its minutes Re No. M3/40365/2015 dated 09.11.2016 has recorded that the IOGS group have unlawfully transported a total quantum of 7,17,768 MT of mineral extracted from the raw sands during the period from 1999-2000 to 2016-17 and they have accepted a total quantum of 1,06,707 MT of minerals were transported by them during the period from 2014-15 to 2016- 17 after stoppage of mining operation and issuance of transport permits. The Committee have further observed that the entire quantum of 1,06,707 MT of minerals transported without transport permit during the period from 2014-15 to 2016-17 is an illegal transport. As the said quantity of 1,06,707 MT minerals included the minerals exported during October 2015 to December 2015 for which the refund claim has been filed, it appeared that the claimants were not eligible for the refund claimed in as much as the minerals had been exported by illicit transportation. 3. The claimants in their reply dated 24.02.2017, filed in response to the SCN, has stated that they are doing Export of Garnet abrasiv....
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....i and the remaining 10% by direct import; that Shri M.Ramesh has mining lease and he manufactures Garnet at his processing unit at Navaladi, Tirunelveli District, that the Garnet are received from the above parties under invoices with other documents and they packed them in Jumbo Bags and export without any further processing: The Garnet are received from Indian Rare Earth Ltd., under invoices and transport permits, that M/s Manickam Minerals are supplying Garnet under their invoices, However, no transport permits are issued by them, that the District Collector Tirunelveli has circulated instructions to Commissioner of Customs, Tuticorin and others by informing about informing of one District level committee and its recommendation; that in this connection, they have filed a writ petition before Hon'ble High Court Madras, Madurai Bench to quash the minutes of the District Level Committee issued by the District Collector, Tirunelveli; though no stay order has been issued by the Court, the matter is sub judice and pending with court. Finally he requested for the refund of Rs 4,04,170/- claimed by them" 24. It is submitted that similar findings on facts have been rendered by the....
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.... present writ petitions are filed. 8. The details of the period, amount, OIOS, OIAS and other details are mentioned in the table below for reference: interest which means only those persons and those activities that are in the interest of the public welfare will be eligible as they earn foreign exchange to the government through their lawful export activities. 9. The petitioner had exported illegally mined and illegally transported minerals; he cannot seek the benefit of exemption of service tax paid on such illegal export. 10. No illegal export can be said to have public interest and it would not be necessary to extend the benefit of exemption notification. The exemption benefit granted by the government is only for lawful exports. 11. No right can accrue from an illegal act. EX TURPI CAUSA NON ORITUR ACTIO. 12. As per Section 86 of the Central Excise Act any person aggrieved by an order passed by a Principal Commissioner or Commissioner may file an appeal to the appellate tribunal against such order. Proviso to Section 86 of Finance Act, 1994 states that where an order relating to service which is exported, has been passed under Sectio....
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....Order in appeals before the CESTAT. Hence this present writ petition may be dismissed with liberty to challenge the order of the appellate authority before the learned CESTAT. 5. For the above reason there is no merit in the petitioner's contentions and it is humbly prayed that the writ petition may kindly be dismissed. 26. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the third respondent. 27. In the taxing matters often, the Courts rely on the following passage of Rowlatt.J. of Kings Division Bench in Cape Brandy Syndicate Vs. Inland Revenue Commissioners reported in (1921) 1 KB 64. "...in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." 28. This view has been followed by the Hon'ble Supreme Court in Commissioner of Income Tax and another Vs. Yokogawa India Limited reported in (2017) 2 SCC 1 and is often quoted in taxing matters. 29. At the same tim....
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....ce Act, 1994 was issued. 33. The export incentives under the Central Excise Act particularly Rules 18 and 19 of the Central Excise Rules, 2002 read with relevant Notifications and Rule 5 of the CESTAT Credit Rules, 2002 as also under Notification No.41/12-ST dated 29.06.2012 issued under Notification No.41/12-ST, dated 29.06.2012 issued under Section 93A of the Finance Act, 1994 are intended to incentivise legitimate exports. The idea of the incentivising such exports is to encourage such exporters, who compete in the international market and bring precious foreign exchange for the country, which enhances the foreign exchange reserves of the country and stabilizes the Government's position quay balance of payments. 34. Although in taxing matters, the Courts are not expected to look into the intentions while interpreting the statutes which include subordinate legislations and Notifications, I am of the view that the petitioner was not entitled to export incentive out of the export of goods made out of the illegally mined sea sand. 35. Unless the exports are legitimate, the question of incentivising such exports would not and could not subserve public purpose. The public....