1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Central Excise Appeal No.8 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.9 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.10 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.11 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.12 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.13 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.14 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.15 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.16 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.17 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] 2 With Central Excise Appeal No.18 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] With Central Excise Appeal No.19 of 2011 [M/s. Gee Pee Agri Pvt. Ltd. Vs. The Customs, Excise & Service Tax Appellate Tribunal, Mumbai and two others] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Rohit Deo, Adv., for the appellant in all appeals. Mr. S.K. Mishra, Asstt. Solicitor General of India for respondent nos. 2 and 3 in all appeals. ----- CORAM : B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ. DATE : 12th October, 2011. 1. Heard respective counsel. 2. We find that the title to exported goods had been transferred by appellant to the merchant-exporter who ultimately has effected the export. The export documents show him as exporter and he has received the payment from the ultimate purchaser. Because of arrangement between him and present appellant, out of that payment received by him in advance, some part was made over to appellant. Service Tax, in relation to which present dispute arises, was, 3 no doubt, paid by present appellant. 3. In this situation, Mr. Deo has attempted to press wider definition of exporter and in that background, has invited our attention to the Departmental Circular bearing F. No. 605/93-94-DBK. He has further, in the alternative and without prejudice to his contention, relied upon the definition and concept of sale as understood in Section 5 (3) of the Central Sales Tax Act, 1956. Effort has also been made to show that merchant-exporter can still file application for refund before competent authority having jurisdiction. 4. Learned Asstt. Solicitor General has supported the impugned order and contended that as title had passed in favour of merchant- exporter before export, the appellant is not entitled to any relief. 5. On the last date of hearing, our attention was invited to various judgments. However, as we find that title had already been transferred to exporter before export, those judgments are of no assistance. We are, therefore, not in a position to find any Substantial Questions of Law arising in these appeals under Section 35G of the Central Excise Act. 6. However, entitlement of merchant- 4 exporter in this respect has not been gone into by the Customs, Excise & Service Tax Appellate Tribunal. Hence we are not required to make any observations about it. If the said merchant- exporter is entitled to any refund, he is free to take recourse to law and the competent authorities can deal with his application accordingly. 7. Accordingly, present appeals are dismissed. No costs. Judge Judge |Hedau|