TMI Blog2014 (8) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... rders are beyond the show cause notice. Under the circumstances, we are of the opinion that impugned orders deserve to be quashed and set aside and the matter is required to be remanded to the First Authority to consider the same in accordance with law and on merits - It will be open for the adjudicating authority to issue fresh show cause notice contending aforesaid ground also and same may be considered in accordance with law and on merits and after giving an opportunity to the petitioners on the aforesaid - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO.4045 of 2014 - - - Dated:- 12-6-2014 - M.R. SHAH AND MR. K.J.THAKER, JJ. Mr. D.K. Trivedi, Advocate for the Petitioner Mrs. V.D. Nanavati, Advocate for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 21/2004-CE(NT) 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice. Therefore, she is not in a position to dispute that so far as denial of claim on the aforesaid ground would be beyond show cause notice. 5. 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 para 7 to 9 which reads as under: 7. Whereas, it appears from the documents submitted along with refund claim that the finished goods viz. Paclitaxel Injenction (of different strengths) have been exported by the assessee un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that if the refund filed under Section 11 B(1) is related to rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India, then the amount of refund would not be credited to Consumer Welfare Fund but would be paid to the applicant. The provision of Section 11 B(2)(a) do not provide filing of the refund claim. Hence, there is no provision under the said Section 11B(2)(a) for the filling of any refund claim. Therefore, the said refund claim by the assessee under Section 11 B(2)(a)is not sustainable and liable for rejection. 9. It also appears that there is no provision under Central Excise Act, 1944 to allow refund/rebate for the duty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denying/rejecting the refund/rebate claim to the petitioners are hereby quashed and set aside and the matter is remanded to the original authority - Assistant Commissioner, Central Excise, Division IV, Ahmedabad-II to decide the refund claim of the petitioners afresh in accordance with law and on merits. It will be open for the adjudicating authority to issue fresh show cause notice contending aforesaid ground also and same may be considered in accordance with law and on merits and after giving an opportunity to the petitioners on the aforesaid. It is made clear that we have not expressed anything on merits in favour of either of the parties and adjudicating authority to pass appropriate order afresh in accordance with law and on merits an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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