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TMI Blog2012 (6) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... T Credit Rules read with Notification no. 5/2006-CE(NT) dated 14.03.2006 for the months of December 2009, January 2010, February 2010 and March 2010. Refunds were filed on the ground that almost all of their clearances of finished goods are meant for exports and they do not have any clearances or have very few clearances to the Domestic Tariff Area, and they are unable to utilize the CENVAT credit accumulated in their account. These refund claims were sanctioned by Additional Commissioner of Central Excise, Belapur vide order-in-Original no. R-293-296/10-11 all dated 31.12.2010. Revenue challenged the orders-in-original passed by the Additional Commissioner before the Commissioner of Central Excise (Appeals) on the ground that: (a) Conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inished goods were lying in a factory as closing balance, the CENVAT credit involved on the said inputs/semi-finished goods/finished goods has been refunded. Rule 5 of the said rules does not provide that refund is to be granted when Cenvat Credit is availed. The refund is to be allowed only of the inputs and input services which are used in relation to the manufacture of other products, which are cleared for export under bond or letter of undertaking. (d) There may be a situation where in a particular month, there is availment of CENVAT credit due to purchase of inputs, but no exports. On the other hand, there may be a situation where there is no purchase of inputs, but exports have been made, in that case, amount of input present in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are bad in law and cannot sustain and he has allowed the Revenue's appeals without going into the merits of the case. 3. The learned Counsel appearing for the appellant stated that the Commissioner of Central Excise did not challenge the order of the Additional Commissioner of Central Excise in its entirety. Inasmuch as no dispute was raised with regard to the refund of input services and the refund order was reviewed only in respect of credit of duty paid on the inputs. He further stated that the Commissioner (Appeals) has committed a error in law in setting aside the orders of refund only on the ground that the Additional Commissioner of Central Excise has no jurisdiction to exercise power of granting refund and in fact the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and discharge the duties conferred or imposed under this Act on any other Central Excise officer, who is subordinate to him." We have seen all the four orders-in-original passed by the Additional Commissioner we find that he has not mentioned anywhere in the order that those orders are being passed by him in exercise of powers under section 12E of the Central Excise Act, 1944. Since under the statute powers of granting refund are with the Assistant Commissioner/Deputy Commissioner of Central Excise, passing of these order in original by the Additional Commissioner has rightly been held as unsustainable. We, therefore, in the interest of justice remand the matter back to the Assistant Commissioner/Deputy Commissioner for deciding the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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