Gujarat High Court
Messrs Poddar Exports(India) ... vs Union Of India Thro Joint ... on 2 July, 2014
Bench: M.R. Shah, K.J.Thaker
C/SCA/13932/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13932 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE K.J.THAKER Sd/
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1. Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2. To be referred to the Reporter or not ? No
3. Whether their Lordships wish to see the fair copy of the No
judgment ?
4. Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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MESSRS PODDAR EXPORTS(INDIA) PROPRIETARY FIRM SHRI
PRADEEP....Petitioner(s)
Versus
UNION OF INDIA THRO JOINT SECRETARY(REVISIONAL AUTHORITY) &
1....Respondent(s)
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Appearance:
MR PARESH M DAVE, ADVOCATE for the Petitioner(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 1
MR RJ OZA, ADVOCATE for the Respondent(s) No. 2
MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 02/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226/227 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order No.270/2011CX Page 1 of 14 C/SCA/13932/2011 JUDGMENT dated 23.03.2011 passed by the Joint Secretary - Government of India by which the Revisional Authority confirmed the Order in Original passed by the Commissioner of Central Excise and Customs (Appeals), Surat1 disallowing the rebate claim of Rs.3,51,469/ + Rs.1,98,432/ claimed by the petitioner on the goods exported by the petitioner as merchant exporter for which according to the petitioner, petitioner applied with all necessary requirements as required under Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as "Rules, 2002").
[2.0] Facts leading to the present Special Civil Application in nutshell are as under:
[2.1] That the petitioner who was exporter cum manufacturer filed rebate claims of Rs.3,51,469/ + Rs.1,98,432/ for the goods i.e. MMF(P) exported by them on payment of central excise duty, exported under different invoices and by submitting the ARE1 etc. [2.2] While scrutinizing the said rebate claim and on the basis of the documents filed by the petitioner and on verification of duty payment it was found by the department that the petitioner has purchased the exported goods from M/s. Raju Synthetics Pvt. Ltd. (now M/s. Hans Dyeing & Printing Pvt. Ltd.), Surat. On further inquiry it was found by the Department that the entire transactions were fake and as such they were only billing transactions only with a view to get the CENVAT credit as well as the rebate and therefore, the petitioner was served with the showcause notices dated 02.02.2006 by which the petitioner was called upon to show cause as to why the rebate claim of Rs.3,51,469/ + Rs.1,98,432/ filed against ARE1 mentioned in the table should not be rejected under Rule 18 of the Rules, 2002 read with section 11BB of the Central Excise Act, 1944 (hereinafter referred to as "Act"). That by the said showcause notices, M/s. Raju Synthetics Pvt. Ltd. from whom the petitioner is alleged to have purchased the goods / raw material was Page 2 of 14 C/SCA/13932/2011 JUDGMENT called upon to show cause as to why the penalty should not be imposed upon them under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11 AC of the Act as well as under Rule 25 of the Rules, 2002. That in the said showcause notices in paras 4 and 5, it was stated as under:
"4. A large scale scam was unearthed in SuratI Commissionerate regarding fraudulent rebate claims where the exporters have submitted bogus shipping bills, ARE1 and other documents. During the investigation of fraudulent rebate claim cases another major modus operandi has also been detected and it has been noticed that number of persons who had obtained the registrations as manufacturers had issued hundreds of Central Excise duty paying invoices, without any movement of goods and infact no goods were sold by them. Based on such bogus duty paying documents, number of parties have claimed Cenvat Credit and part of which had found its way in rebate claims also. Considering a huge revenue involvement running in to Crores of rupees due to issue of fake/bogus excise invoices it was felt necessary that before sanctioning rebate claims inquiry should be made regarding genuineness of the manufacturer and the input invoices on which Cenvat Credit has been availed and duty paid.
5. Whereas it appears that M/s. Poddar Exports (India), S4, Sardar Palace, Sardar Market, PunaKunbharia Road, Surat (Exporter) has filed a rebate claim arising out on the exported goods, vide ARE1 No.9, dtd. 17052004, which is mentioned above. The exporter has purchased these goods from M/s. Raju Synthetics Pvt. Ltd. (now M/s. Hans Dyeing & Printing Pvt. Ltd.) Plot No.184, Near Baleshwar Khadi, Tal.Palsana, Distt. Surat, who has purchased the goods from M/s. Om Textiles, 77, HariIchcha Society, Udhna, Surat, who have been declared non existent/fake/bogus unit vide letter F.No.IV/12HPIUIII/9/0405 Pt.IV, dt. 31.03.2005 of the Commissioner, Central Excise & Customs, SuratI, and from M/s. Shree Ganesh Textiles, Plot No.4230, Road No.4, GIDC, Sachin Surat, who have been reported by the Superintendent, Central Excise Range III, DivisionV, SuratI, as "On physical verification it is found that the Unit is bogus/fake" by way of endorsement on letter F.No.R.V/Export/Raju/200405, dt. 22.03.2005."
In response to the said showcause notices, the petitioner submitted the reply dated 14.06.2006 by submitting that as such the goods have been physically exported out of India and that the petitioner has paid the amount of duty and proper documents for claiming the Page 3 of 14 C/SCA/13932/2011 JUDGMENT rebate claims are also filed. It was submitted that therefore the petitioner is entitled to the rebate of duty on the goods actually and physically exported.
[2.3] That the Assistant Commissioner of Central Excise and Customs, Surat adjudicated the said showcause notice and passed the OIO on 28.03.2007 rejecting the rebate claim submitted by the petitioner by observing that there were only paper transactions between M/s. Raju Synthetics Pvt. Ltd. and the petitioner and the same was only billing activities for getting the benefit of CENVAT Credits as well as the rebate.
[2.4] That feeling aggrieved and dissatisfied with the Order in Original passed by the Assistant Commissioner, Central Excise, Surat rejecting the rebate claim of Rs.Rs.3,51,469/ + Rs.1,98,432/ filed by the petitioner under Rule 18 of the Rules, 2002 in respect of the ARE1, the petitioner preferred appeal before the Commissioner (Appeals) and vide Order in Appeal dated 18.03.2009, the Commissioner (Appeals) dismissed the said appeal.
[2.5] Feeling aggrieved and dissatisfied with the order passed by the learned Commissioner (Appeals) in rejecting the appeal and confirming the OIA rejecting the rebate claim of Rs.3,51,469/ + Rs.1,98,432/ filed by the claimant, the petitioner preferred Revision Application before the Central Government and the Revisional Authority - Joint Secretary, Government of India had dismissed the said revision application confirming the orders passed by both the authorities below rejecting the claims of the petitioner of Rs.3,51,469/ + Rs.1,98,432/.
[2.6] Feeling aggrieved and dissatisfied with the impugned orders passed by the Revisional Authority, Commissioner (Appeals) and the OIO rejecting the claim of Rs.3,51,469/ + Rs.1,98,432/ submitted by the petitioner, the petitioner has preferred the present Special Civil Page 4 of 14 C/SCA/13932/2011 JUDGMENT Application under Article 226/227 of the Constitution of India.
[3.0] Shri Paresh Dave, learned advocate appearing on behalf of the petitioner has vehemently submitted that all the authorities below have materially erred in rejecting the rebate claim of the petitioner of Rs.3,51,469/ + Rs.1,98,432/ filed by the petitioner in respect of the ARE1s. It is submitted that as such the petitioner had complied with all the requirements under the law more particularly under Rule 18 of the Rules, 2002 with respect to its rebate claims of Rs.3,51,469/ + Rs.1,98,432/. It is submitted that as the petitioner filed the necessary documents along with the respective ARE1s with full particulars and complied with all the requirements which were required to be complied with under Rule 18 of the Rules, 2002, the authorities below have erred in rejecting the rebate claims of the petitioner.
[3.1] It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such the petitioner did physically exported the goods out of India on payment of duty and infact submitted the proper documents for claiming rebate claims and when the documents of export have not been doubted and/or not found to be forged and fake, the petitioner is entitled to the rebate as claimed on the goods actually and physically exported out of India and on which the duty was paid by the petitioner.
[3.2] It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such the petitioner purchased the goods/processed fabrics from one M/s. Raju Synthetics Pvt. Ltd. It is submitted that as such the said M/s. Raju Synthetics Pvt. Ltd. purchased the goods from M/s. Rangroop Texturiser, M/s. Om Textiles and M/s. Shree Ganesh Textiles. It is submitted that as such M/s. Raju Synthetics Pvt. Ltd. from whom the petitioner purchased the processed fabrics/goods, which came to be exported by the petitioner was at no Page 5 of 14 C/SCA/13932/2011 JUDGMENT point of time declared as a fake company. It is submitted that therefore and in such a situation denial of the rebate claim is not justified, which deserves to be quashed and set aside.
[3.3] It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such the petitioner purchased the inputs/goods from M/s. Raju Synthetics Pvt. Ltd. which was not found to be nonexistent and thereafter actually and physically exported the goods on payment of duty and therefore, the petitioner shall be entitled to the rebate of duty paid on the goods which came to be exported by the petitioner. It is submitted that merely because the supplier from whom M/s. Raju Synthetics Pvt. Ltd. purchased the raw material / input was found to be nonexistent and/or indulged into any malpractice, the petitioner who had actually and physically exported the goods on payment of the duty may not be denied the rebate. It is submitted that in the present case as such M/s. Raju Synthetics Pvt. Ltd. was never declared as fake supplier. It is submitted that therefore the petitioner shall be entitled to the rebate as claimed. In support of his above submissions, Shri Dave, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Division Bench of this Court in the case of Commissioner of C.Ex. & Customs v. D.P. Singh reported in 2011(270) E.L.T. 321 (Guj.) Making above submissions and relying upon the above decision it is requested to allow the present special civil application and direct the respondents to pay / grant the rebate of Rs.3,51,469/ + Rs.1,98,432/ with interest thereon under Section 11BB of the Act.
[4.0] Present petition is opposed by Shri R.J. Oza, learned Counsel appearing on behalf of the Department. It is submitted that in the present case as such there are concurrent findings of facts by all the authorities below that infact there was no physical movement of the goods/inputs and the transactions between the petitioner and the Page 6 of 14 C/SCA/13932/2011 JUDGMENT supplier - M/s. Raju Synthetics Pvt. Ltd. were fake transactions. It is submitted that there are concurrent findings of fact by all the authorities below that the transactions between the petitioner and M/s. Raju Synthetics Pvt. Ltd. (Supplier) were only billing activities for the purpose of availing CENVAT Credit as well as the rebate. It is submitted that it has been found by all the authorities below that M/s. Om Textiles from whom M/s. Raju Synthetics Pvt. Ltd. is alleged to have purchased the goods was already declared nonexistent/fake/bogus unit vide order/letter dated 31.03.2005 of the Commissioner of Central Excise and Customs, Surat1 and even M/s. Shree Ganesh Textiles from whom M/s. Raju Synthetics Pvt. Ltd. (Supplier) was alleged to have purchased the goods on physical ground. It was found that the said unit is bogus/fake by way of endorsement on letter dated 22.03.2005. It is submitted that therefore when in the facts and circumstances of the case, it has been found that the transactions between M/s. Raju Synthetics Pvt. Ltd. (Supplier) and the petitioner were sham being mere paper transactions and it was only billing activities, the petitioner is rightly denied the rebate claim.
[4.1] Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of D.P. Singh (Supra) by the learned advocate appearing on behalf of the petitioner in support of his submission that as the petitioner had purchased the goods/raw material / inputs from M/s. Raju Synthetics Pvt. Ltd. and M/s. Raju Synthetics Pvt. Ltd. was not declared fake supplier and as M/s. Raju Synthetics Pvt. Ltd. purchased the said goods from M/s. Rangroop Texturiser, M/s. Om Textiles and M/s. Shree Ganesh Textiles and therefore, the petitioner can be said to be bonafide purchaser who actually and physically exported the goods on payment of duty is concerned, it is submitted that as such the said decision shall not be applicable to the facts of the case on hand. It is submitted that in the present case even there are concurrent findings of fact by all the Page 7 of 14 C/SCA/13932/2011 JUDGMENT authorities below that infact the transaction between the petitioner and M/s. Raju Synthetics Pvt. Ltd. (Supplier) are found to be fake transactions and only billing activities for the purpose of availing CENVAT Credit and the rebate. It is submitted that therefore when even the petitioner has failed to satisfy the actual movement of goods from M/s. Raju Synthetics Pvt. Ltd. to the petitioner and the transactions between M/s. Raju Synthetics Pvt. Ltd. and the petitioner are found to be fake, the petitioner is rightly denied the rebate claim.
Making above submissions, it is requested to dismiss the present special civil application.
[5.0] Heard learned advocate appearing on behalf of respective parties at length. Considered and perused the impugned orders passed by the Original Adjudicating Authority, the Commissioner (Appeals) and the Revisional Authority.
At the outset it is required to be noted that petitioner submitted the rebate claim of Rs.3,51,469/ + Rs.1,98,432/ on the goods exported by them under the ARE1s, the particulars of which are mentioned in the showcause notices at AnnexureA. The same have been denied by all the authorities below by observing that as such the transactions between the petitioner and its supplier were fake transactions and there was no actual and physical movements of the goods and the petitioner and the supplier indulged into the billing activities only for the purpose of taking benefit of CENVAT Credit and rebate. Therefore, as such there are concurrent findings of fact by all the authorities below with respect to the fake transactions between the petitioner and M/s. Raju Synthetics Pvt. Ltd. (supplier). At this stage it is required to be noted and it has come on record that the petitioner is alleged to have purchased the goods from M/s. Raju Synthetics Pvt. Ltd. (its supplier) who purchased the goods from M/s. Rangroop Texturiser, M/s. Om Textiles and M/s. Shree Ganesh Textiles. It has come on record that so far as M/s. Ganesh Textiles and M/s. Om Textiles are concerned, two purported suppliers -
Page 8 of 14C/SCA/13932/2011 JUDGMENT writer of the invoices, they were already declared as fake and fictitious and their names figured in the Alert Circular issued by the Commissioner of Central Excise, Surat1. It is the case on behalf of the petitioner that when the petitioner has as such exported the goods, the petitioner shall be entitled to the rebate. However, it is required to be noted that unless and until it is established and proved by the petitioner that the petitioner exported the goods by using the inputs purchased by him on payment of duty or excise duty and the petitioner used the said inputs on which the duty was paid then and then only the petitioner shall be entitled to the rebate. In the present case, as observed hereinabove, it has been found and established that the transactions between the M/s. Raju Synthetics Pvt. Ltd. and M/s. Rangroop Texturiser, M/s. Om Textiles and M/s. Shree Ganesh Textiles and thereafter between M/s. Raju Synthetics Pvt. Ltd. (supplier) and the petitioner were fake transactions, no evidence has been produced to establish and prove the actual physical movement of the goods from M/s. Om Textiles, M/s. Ganesh Textiles to M/s. Raju Synthetics Pvt. Ltd. and thereafter from M/s. Raju Synthetics Pvt. Ltd. to the petitioner. Considering the aforesaid facts and circumstances, the adjudicating authority denied the rebate claim. On appeal, the Commissioner (Appeals) has dismissed the said appeal preferred by the petitioner by observing in paras 4.1 to 4.4 as under:
"4.1 In a normal situation, claim of rebate is granted based on the copies of ARE1 and export invoices evidencing clearance of export goods on payment of duty, endorsement of correctness of ARE1 by the Central Excise Officers having jurisdiction over the factory of production, endorsement in the ARE1 of proof of export by the Customs Officer. The export procedures have been simplified and presence of Central Excise Officer is not necessary at the time of clearance. Clearances for export take place under self under self removal procedure without presence of Central Excise Offices under belief that documents genuinely reflect the transactions recorded therein. However the situation under which claims of rebate were filed is not normal situation but extraordinary abnormal situation, in as much as a large scale scam has taken place at Surat and other textile centers wherein very large number of excise invoices involving textile Page 9 of 14 C/SCA/13932/2011 JUDGMENT items have been issued in the name of fictitious unknown persons. In the wake of largescale scam, Commissioner of Central Excise, SuratI has issued instruction No.08/2005 dated 03.02.05. These instructions clearly required verification of input invoices before sanction of claim of rebate with an object to identify genuine and nongenuine cases. The Notification No.40/2001 CE(NT) dated 26.06.2001 issued under Rule 18 of the Central Excise Rules, 2002 requires the jurisdictional Assistant / Deputy of Maritime Commissioner (the rebate sanctioning authority) to satisfy himself that the claim is otherwise in order. It is only when the rebate sanctioning authority is satisfied as to the genuineness of the claim, the claim can be sanctioned by him. Power vested with the rebate sanctioning authority is discretionary power. The discretionary power is not unfeltered one and every discretionary power has to be exercised in good faith and in furtherance of object sought to be achieved. The very object of granting rebate is export promotion based on well recognized principle of export promotion that exports should not suffer taxes of exporting country. The sine qua non of rebate is that export goods have indeed suffered the duty which is reflected on the export documents and that the same has been paid to the exchequer. In the present case the duty reflected on the ARE1 has been paid out of the Cenvat Credit Account which in turn has arisen from duty reflected on the invoices of grey fabrics purportedly written by parties found fictitious / unknown. Considering the factual matrix prevailing, the rebate sanctioning authority was duty bound to carry out through scrutiny of the claim of rebate including the transactions right from the procurement of grey fabrics by the processor. It is legal duty of the rebate sanctioning authority to satisfy himself that transactions recorded in the documents genuine, that goods reflected in documents indeed exported and that the duty was indeed paid to the exchequer. Under facts and circumstances, the verification of input invoices is very relevant to ascertain the genuineness of the claim and also the fact of payment of duty.
4.2 It is found that all the suppliers are fake, bogus/non existent/fictitious and declared as such under the Alert Circulars issued by the Commissioner of Central Excise, SuratI. The Alert Circulars are in public domain. None of the purported suppliers of grey fabrics have represented against the circular. The verification report of respective Range Officer also confirms nonexistence of purported supplier.
4.3 The appellant (a Merchant Exporter) has produced copies of purchase order placed on the processor (manufacturer). From the purchase orders it is seen that the value of the processed fabrics has been shown between Rs.65 - Rs.75 per mtr. but neither the width of fabrics is indicated in the purchase order nor the weight of the fabrics (grams per square meter). The purchase order mentions that fabrics are to undergo weight reduction process but there is no such mention Page 10 of 14 C/SCA/13932/2011 JUDGMENT on the clearance documents (ARE1). Neither the description in the ARE1 nor the description in Export documents (Shipping Bill indicates that export products have undergone weight reduction process). The appellant has produced no documents or evidence which can show that what was procured under ARE1 or exported under the Shipping Bills has undergone weight reduction process. Value of export goods (of processed polyester filament fabrics) as reflected in export documents and ARE1 is as high as Rs.1000/Kg. which is abnormal by any standards.
4.4 In its submissions dt. 19.12.2008 before me, the appellant has furnished copies of quarterly returns filed by M/s Om Textiles and M/s Shree Ganesh Textiles the twopurported suppliers/Writer of invoices of grey fabrics. However the allegations are that these two parties are ake and fictitious. Mere filing of returns do not establish that the two parties are real. M/s Om Textiles appear at Sl. No.120 of the appendix II of the Alert Circular F. No.IV/12HPIUIII/9/0405 Pt. V dt. 03.05.2005 of the Commissioner of Central Excise, SuratI declaring the said unit as fake and fictitious. Similarly M/s Shree Ganesh Textiles appear at Sl. No.56 of the Alert Circular F. No. IV/12HPIU III/9/0405 Pt. V dt. 22.09.2005 of the Commissioner of Central Excise, SuratI. None of the two have surfaced yet to challenge the alert Circulars which are in public domain. If indeed the two Units were genuine real or existing person, the appellant could have produced on affidavit from these parties to establish the transactions. In respect of M/s Shri Ganesh Textiles, M/s Ajay Textiles and M/s Rahul Textiles, the appellant admits that the three units are fake and fictitious. The appellant's submissions are that the processor has reversed the credit (by debiting the credit account) in respect of invoices of the said three units. The appellant have furnished the copy of monthly return for the month of February and March 2005 of M/s Raju Synthetics (P) Ltd. evidencing debit in the credit account to the tune of about Rs.19 Lakh on account of wrong credit pertaining to the said three purported suppliers. Argument of the appellant is that the processor has debited the credit account and therefore they (appellant) should be allowed the rebate of duty reflected on the clearance documents. (ARE1 and export excise invoice). However the allegations are that the processor has availed credit to the tune of Rs.51,84,530/ on basis of invoices of grey fabrics raised by fictitious supplier. No doubt the processor has shown remorse by making debit of a part of the wrong credit but that alone is not sufficient to entitle the appellant to claim rebate. First of all payment is only for one third of wrong credit. Secondly it establishes that appellant and the manufacturer are engaged in the fraudulent documentation."
Aforesaid findings and the order passed by the Page 11 of 14 C/SCA/13932/2011 JUDGMENT Commissioner (Appeals) has been confirmed by the Revisional Authority.
Under the circumstances, when the transactions between the manufacturer (processor) and the merchant exporter (petitioner) are found to be bogus and when it has been established that the purported suppliers are fake and fictitious persons and the entire transaction is found to be only billing activities for the purpose of taking undue advantage of the CENVAT Credit and/or the rebate, no error has been committed by the Authorities below in denying the rebate claims claimed by the petitioner.
[5.1] Now, so far as the contention on behalf of the petitioner that as the petitioner had exported the goods on payment of duty the petitioner is entitled to rebate of excise duty is concerned, the same arguments came to be considered by the Division Bench of this Court in Special Civil Application No.13931/2011. At that stage also, the petitioner of that petition heavily relied upon the decision of this Court in the case of D.P. Singh (Supra). While not accepting the said submission and while denying the rebate claim on actually exported goods, the Division Bench of this Court has observed as under:
"Basically the issue is whether the petitioner had purchased the inputs which were duty paid. It may be true that the petitioner manufactured the finished goods and exported the same. However, that by itself would not be sufficient to entitle the petitioner to the rebate claim. In the present case, when the authorities found inputs utilized by the petitioner for manufacturing export products were not duty paid, the entire basis for seeking rebate would fall. In this case, particularly when it was found that several suppliers who claimed to have supplied the goods to the petitioner were either fake, bogus or nonexistent, the petitioner cannot be claimed rebate merely on the strength of exports made."
In the present case also, there are concurrent findings of fact given by all the authorities below with respect to the fake transactions Page 12 of 14 C/SCA/13932/2011 JUDGMENT between the petitioner and M/s. Raju Synthetics Pvt. Ltd. , we are of the opinion that all the authorities have examined the case in detail and as such no interference is called for. The conclusions arrived at by the authorities below are on the basis of evidence on record and such conclusions are not pointed out to be perverse. Under the circumstances, as such no interference in exercise of powers under Articles 226 & 227 of the Constitution of India, therefore, can be made.
[5.2] Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of D.P. Singh (Supra) is concerned, the said decision shall not be applicable to the facts of the case on hand. It is required to be noted that in the present case even the transactions between the petitioner and M/s. Universal Textiles (Supra) are found to be fake transactions. Merely because M/s. Raju Synthetics Pvt. Ltd. was not declared as fake company / supplier, it makes no difference. As such there is a distinction between the fake transaction and the fake company. When the transactions between the petitioner and the supplier were found to be fake transactions and it was found that the petitioner has failed to establish and prove that the petitioner used the inputs / goods in manufacturing of even the goods which came to be exported on which the actual excise duty or paid, the petitioner shall not be entitled to the rebate of the duty, which is not proved to be paid. It is required to be noted that in the present case the supplier of the petitioner - M/s. Raju Synthetics Pvt. Ltd. was alleged to have procured/purchased the goods from M/s. Rangroop Texturiser, M/s. Om Textiles and M/s. Shree Ganesh Textiles were declared as fake and non existent for which their names were put in the alert circular by the Commissioner. Under the circumstances, the petitioner shall be entitled to the rebate as claimed. Our aforesaid view is supported by the decision of the Division Bench of this Court in the case of Multiple Exports Pvt. Ltd. v. Union of India reported in 2013 (288) ELT 331 (Guj.). [6.0] In view of the above and for the reasons stated above, present Page 13 of 14 C/SCA/13932/2011 JUDGMENT Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. SHAH, J.) Sd/ (K.J. THAKER, J.) Ajay Page 14 of 14