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TMI Blog2011 (5) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... tured from their factory located at Mothikavdi, Jamnagar. 2.1 The respondent had submitted the requisite documents, such as ARE-1, Central Excise Invoices, copies of Shipping Bills, Copies of Bills of lading, copy of the certificate issued by the superintendent of Central Excise Jamnagar certifying that the Central Excise duty have been paid and copy of the bank realization certificate. 2.2 The adjudicating authority had sanctioned all the above rebate claims under Section 118 of the Central Excise Act, 1944, on the grounds that the goods had been exported within six months from the date of their clearance from the factory, that the provisions of unjust enrichment are not applicable to the goods exported; that the Deputy Commissioner, Customs Air Cargo Complex, Ahmedabad had confirmed the genuineness of the shipping bills and that the export is not under duty free import authorization schemes. 2.3 Aggrieved with these orders, the Revenue reviewed all the orders-in-original under Section 35E(2) of the Central Excise Act, 1944 and preferred the appeals before Commissioner (Appeals) on the following grounds : (i) As per para 8.1 of the Central Board of Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner has also been amended suitably as per Notification No. 79/2003-C.E. (N.T.) and 80/2003-C.E. (N.T.) both dated 29-10-2003. As per the amended definition, the Maritime Commissioner has been defined as Commissioner of Central Excise under whose jurisdiction one or more of the port, airport, land customs station and post office of exportation is located. The adjudicating authority i.e. Assistant Commissioner has not been declared as "Maritime Commissioner" for the purpose of sanctioning of rebate of duty of excise paid on the goods exported under Rule 18 of the Central Excise Rules, 2002. Therefore the impugned orders sanctioning the rebate claims are without jurisdiction. 3. Commissioner (Appeals) after considering submissions of both the parties allowed the appeal of the department/respondent. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of the Central Excise Act, 1944 on the following grounds :- 4.1 It is applicant's prime submission that rebate claims were submitted after making due enquiries from the Assistant Commissioner, Central Excise, Division-I under whose jurisdiction the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11B of the Central Excise Act 1944, which is the statutory provision of law in terms of which rebate is sanctioned specifically provides that a claim for rebate has to be filed with Assistant/Deputy Commissioner. The claim filed by the applicant is in consonance with this statutory provision, the impugned order holding that a claim for rebate ought to be filed with the Commissioner of Central Excise is clearly contrary to provisions of Section 11B and thus deserves to be quashed and set aside on this ground alone. 4.5 Applicant further submits that a claim if bona fide filed in an incorrect office and the same is accepted without demur and not returned as defective, the revenue is no longer entitled to reject the claim merely on account of such a defect in the filing of the claim. The Tribunal in the cases of Steel Authority of India Ltd., 1990 (50) E.L.T. 83 (T.-Cal.) and Sun Pharmaceuticals, 2003 (158) E.L.T. 94 (T.-Chennai), has clearly held that if a claim which is filed in an incorrect office is accepted without demur and also entertained by the said officer without directing the claimant to file the claim with the correct office, such a claim cannot be subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the jurisdictional Assistant Commissioner TAL to undertake the same exercise which is of no material consequence. As was urged by the Counsel for the applicants, a different Assistant Commissioner sanctioning the refund involves only an administrative adjustment of funds disbursed as rebate for statistical purposes. Moreover, a similar sanction order No. 1/96, dated 31-5-06 passed by the Assistant Commissioner, Chennai-I Division, Chennai-II Commissionerate in a claim of similar facts has been accepted by the department and no appeal filed against the same. In the circumstances, the appeal filed by TAFE is allowed restoring the order-in-original No. 4/06 RB dated 21-4-06." The Applicant submits that the above ratio of the Hon'ble Tribunal applies in all fours to its case under consideration. 4.7 The applicant submits that the substantive benefit due to it cannot be denied for any procedural lapses. The applicant further submits that the fundamental requirement for rebate is manufacture and export and as long as this fundamental requirement is met, other procedural deviations, if any, can be condoned. In support of the above, the applicant relies on the Order No. 526/2005, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds stated in para 4 above. 8. Government notes that initially ACCE, Div.-I, Ahmedabad-II sanctioned the rebate claim as the procedure and conditions specified in Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of Central Excise Rules, 2002 stood complied with. After review of impugned orders by Commissioner of Central Excise, Ahmedabad-II,/appeals were filed before Commissioner (Appeals) on the ground that Assistant Commissioner of Central Excise Div.-I, Ahmedabad-II did not have the jurisdiction to sanction the rebate claims as the rebate claims could be sanctioned either by the DC/ACCE, Jamnagar having jurisdiction over the factory manufacturing the goods or the Maritime Commissioner. Since the ACCE Div.-I, Ahmedabad was not designated as Maritime Commissioner in terms of Notification No. 79/2003-C.E. (N.T.) and 80/2003-C.E. (N.T.) both dated 29-10-2003, he was not competent to sanction the claims. Though C.B.E. & C. vide Circular No. 758/74/2003-CX., dated 29-10-2003 had directed the jurisdictional Commissioner to designate an office as Maritime Commissioner, but the Commissioner Central Excise Ahmedabad-II had not designated any officer as Mari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the applicant was entertained by the original authority and the rebate sanctioned. In review order of the original authority was not found to be defective except for the lack of jurisdiction............ As the rebate claim was found to be in order in review except for the jurisdictional aspect, I find that it is necessary for the applicants to approach the jurisdictional Assistant Commissioner TAL to undertake the same exercise which is of no material consequence. As was urged by the Counsel for the applicants, a different Assistant Commissioner sanctioning the refund involves only an administrative adjustment of funds disbursed as rebate for statistical purposes. Moreover, a similar sanction order No. 1/96, dated 31-5-06 passed by the Assistant Commissioner, Chennai-I Division, Chennai-II Commissionerate in a claim of similar facts has been accepted by the department and no appeal filed against the same. In the circumstances, the appeal filed by TAFE is allowed restoring the order-in-original No. 4/06 RB dated 21-4-06." 10. There are catena of judgments that substantial benefit cannot be denied for procedural infraction. In case of 1989 (39) E.L.T. 503 (S.C.) Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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