TMI Blog2010 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramesh, for the Appellant. T.R. Senthil Kumar, SSC for Customs and C. Ex., for the Respondent. [Judgment per : F.M. Ibrahim Kalifulla, J.]. - The appellant is aggrieved against the order of the learned single Judge dated 2-11-2009 passed in W.P. No. 30730 of 2003 in and by which the learned Judge declined to interfere with the orders of the first and second respondents regarding non grant of rebate of Rs. 5,54,379/- as per Rule 12(1)(b) of Central Excise Rules, 1944 for the period from May 2000 to March 2001. 2. The appellant is engaged in the manufacture of I.V. Fluids which were periodically being exported by the appellant outside the country. It is claimed that the appellant was operating both under Rule 12(1)(b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with by the Assistant Commissioner of Central Excise "C" Division, Chennai Commissionerate-1 in Order-in-Original No. 14/2001. By order dated 4-9-2001, the claim was rejected. The appellant preferred an appeal in Appeal No. 75 of 2001, which was also dismissed by the second respondent by order dated 27-3-2002 in Order in Appeal No. 19/02. The appellant preferred a revision before the first respondent and in Order No. 147 of 2003 dated 23-7-2003, the revision application having been rejected, the appellant preferred W.P. No. 30730 of 2003 for setting aside the above said orders with a further direction to grant a rebate of Rs. 5,54,379/- as contemplated under Rule 12(1)(b) for the period from May 2000 to March 2001. The writ petition ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discretionary power vested with the authority under proviso to Rule 12(1)(b). The learned counsel further contended that for the very same reason, the orders of respondents herein are also liable to be set aside. He also brought to our notice Circular No. 144/55/95-CX., dated 24-8-1995 by which the Government of India, Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi, was delegated the power of satisfaction of Commissioner as to actual exportation of goods as specified in the proviso under Rule 12(1) and sanction of rebate claim to the Assistant Commissioner of Central Excise (refund) and the jurisdictional Assistant Commissioner. He also contended that the Assistant Commissioner cannot be heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact the counsel appearing on behalf of the appellant before him brought to the notice of the Assistant Commissioner, discretionary power vested in him that in the event of factum of export he being satisfied with the goods have been exported even if all or any of the conditions laid down in the notifications were not complied with, the claim can be sanctioned. Inspite of the appellant having brought the said position to the notice of the Original Authority, unfortunately the Assistant Commissioner merely proceeded on the footing that the procedures were not duly complied with. For better appreciation of the appellant's case, it would be worthwhile to read the proviso to Rule 12(1) which reads as follows : "Provided that if the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstand as to why the Assistant Commissioner failed to exercise the discretionary power vested in him under the proviso to Rule 12(1) while considering the appellant's claim for rebate applied under Rule 12(1)(b) of the Central Excise Rules. Therefore, it is not the case of the authority that there was any other lapse or willful omission committed by the appellant in making the claim or that the factum of export was not proved. In this circumstances, when once the competent authority viz., the Assistant Commissioner was satisfied with the factum of export that the final products made by the appellant, his failure to exercise the discretionary power vested in him in the absence of any other valid reasons cannot be sustained. For the very sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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