KANDARP DILIPBHAI DHOLAKIA Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE . Ms. V.D. Nanavati, learned advocate waives service of notice of Rule on behalf of respondents. In the facts and circumstances of the case and for the reasons stated hereinafter, the matter is required to be remanded to the First Authority, present Special Civil Application is taken up for final hearing with the consent of the learned advocates for the respective parties. Feeling aggrieved and dissatisfied with the impugned order passed by the Respondent No. 2 - Union of India - Revisional Authority in dismissing the revision application preferred by the petitioners -assessee and confirming the Order -in -Original passed by the Assistant Commissioner, Central Excise, Division IV, Ahmedabad -II rejecting the refund claim of Rs. 4,30,762/ - filed by the petitioners, which was further confirmed by the learned Commissioner (Appeals), petitioners have preferred present Special Civil Application.

(2.) SHRI Trivedi, learned advocate for the petitioners has vehemently submitted that as such the order passed by all the authorities below rejecting the refund claim filed by the petitioners is absolutely on misinterpretation of Section 11B(2)(a) r/w Rule 18 of the Central Excise Rules, 2002. It is submitted that as such the petitioners claimed the rebate of the duty paid on inputs/materials used in the manufacturing or processing of the final product. It is submitted that all the authorities below have rejected the claim on the ground that final product is not excisable goods. It is submitted that apart from the above even all the authorities below, more particularly, Order -in -Original has been passed by the Assistant Commissioner, which is beyond the scope of show cause notice. It is submitted that the refund claim has been rejected by all the authorities below on the ground that procedure for rebate of duty paid on materials required to be followed under Rule 8 of the Central Excise Rules, 2002 r/w Notification No. (N.T.), dated 6 -9 -2004 has not been followed by the petitioners. It is submitted that at the time when the original authority issued the show cause notice directing the petitioners to show cause as to why its rebate/refund claim may not be rejected, the same was not on the ground that the petitioners have not followed the procedure as specified in the aforesaid notification. It is submitted that therefore, Order -in -Original passed by the Assistant Commissioner confirmed by the learned Commissioner (Appeals), further confirmed by the Revisional Authority is beyond scope of show cause notice. Therefore, it is requested to quash and set aside the impugned orders and either remand the matter to the First Authority to consider the show cause notice afresh in accordance with law and on merits and without in any way being influenced by the earlier Order -in -Original passed by the Commissioner (Appeals) and the Revisional Authority and after giving an opportunity to the petitioners or to consider same before this Court.

(3.) WE have heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that when the original authority -Assistant Commissioner issued the show cause notice calling upon the petitioners to show cause as to why its rebate/refund claim may not be rejected. It was sought to be denied on the ground set out in Paras 7 to 9 which reads as under: