9911796707
TMI Blog2014 (6) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.7.2001. Under such notification, the petitioner was entitled to either refund of duty paid from the PLA or to avail self-credit in the subsequent months. 2.2 For various consignments of goods cleared for export from the said factory, the petitioner filed rebate claims seeking refund of excise duty paid on such goods so exported. In response to such 127 separate rebate claims filed by the petitioner, the adjudicating authority issued show-cause notices indicating that the notification no.39/2001 exempts goods cleared from the Kutch district by refunding the duty paid from the PLA and inasmuch as the goods were exempted by virtue of section 5A of the Act, the same cannot be treated as duty paid goods. 2.3 The petitioner replied to the show-cause notices. The petitioner relied on an order dated 13.12.2005 passed by the Commissioner of Appeals which were in its favour. 2.4 It appears that the rebate claims were dismissed by the Assistant Commissioner passing two separate orders dated 8.3.2006 and 8.3.2007. Case of the petitioner is that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not thereafter, exercise suo motu powers. He relied on the decision of the Supreme Court in case of Mafatlal Industries Ltd. v. Union of India 1997 (89) ELT 247 and held that the original order passed by the adjudicating authority rejecting the petitioner's claims cannot be ignored. He did not have power of reopening the concluded proceedings unless such order was set aside according to law. He held that the amendment in rule 18 was meant to protect and validate the action already taken with retrospective effect. Such provision along with section 88 of the Finance Act, 2008 were never intended to affect or alter any proceedings which were contemplated. In view of such observations, he allowed the department's appeal. 7. The petitioner filed appeal against the order of the Commissioner of Appeals. Such appeal was however, dismissed by the Government of India by the impugned order dated 29.08.2013. It was observed as under : "7. On perusal of records, Government observes that the applicants engaged in the manufacture of Bed Sheets/Terry Towels, has availed the benefit of areas based exemption notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said revision applications No. 195/3,4 & 100/08-RA-CX of M/s. Welspun Corp. Ltd. formerly known as M/s. Welspun Gujarat Sthat Rohens Ltd and M/s. Welspun Trading Ltd vide GOI Revision Order no. 212-214/10-Cx dated 16.2.2010. Now Commissioner (Appeals) vide impugned common orders-in-appeal no.447 to 706/2012/Commr(A)/ RBT/RAJ dated 24.7.2012, decided the department appeals, relating to three parties including the instant cases of applicant. Commissioner(Appeals) decided the appeal in favour of department and set aside all these Order-in-original sanctioning rebate claims. Applicants have now filed these revision applications on grounds mentioned in para (4) above. Meanwhile, the department initiated action for recovery of sanctioned rebate claims pursuant to impugned orders-in-appeal dated 29.7.2012. The applicants filed Special Civil Application NO. 14733 of 2012 and 14735 of 2012 against the said action of recovery of sanctioned rebate. The Hon'ble High Court vide order dated 12.12.2012 restrained the department from taking further action of recovery of sanctioned claims till the final disposal of these impugned revision applications. The revision applications filed by othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2012 is not w.r.t Orders-in-Original No.01,14 to 20/AC/06-07 dated 08.03.2006. So the said orders dated 08.03.2006 are not under challenge in this revision application. 10. Applicant has further contended that in view of GOI order No.559-858/13-Cx dated 28.06.2013, their revision application may be allowed. Government has held in para 8.4 of said order dated 28.6.2013 as under : 8.4 Government observes that the said issue was not involved in the revision applications in question i.e. Revision Application No.195/3,4 & 100/08-RA, and therefore, the said issue was not considered This issue is raised in the present revision applications and as such it is to be considered as per law. In this regard, Government notes that it is a well settled legal position on this issue that after passing an appealable order, the authority become functus officio and cannot reopen the case suo motu to redecide the same. The original authority had no option to reopen the rebate claim which were already rejected and rejection order was upheld by Commissioner (appeals). The provision of section 88(2) of Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of already decided cases suo motu as is done in this case by original authority. Therefore, Government do not find any legal infirmity in the impugned orders-in-appeal w.r.t said issue and upholds the impugned Orders-in-appeal dated 24.07.2012 to this extent." 10.1 In the instant case, the initial rebate rejection orders dated 08.03.2007 were not challenged in appeal. Otherwise facts of the cases are same. As stated above, Government has concurred with the finding of Commissioner (appeals) that after passing an appealable order the authority becomes functus officio and cannot reopen the case suo motu to redecide the same. In this case also same finding of Government holds good. Government therefore agrees with the said order of Commissioner (appeals) that original authority had rejected the rebate claims initially and he had no authority to reopen the said cases and sanction the claims on his own. Government holds that original authority has erred in sanctioning the said claim when his earlier orders rejecting the claims were in force. As such Commissioner (appeals) has rightly set aside the said Orders-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of applicability of a retrospective amendment may have some bearing on the aspect whether the petitioner had accepted the orders of rejection of rebate claim and abandoned the proceedings. Even it was so established, perhaps the department could have argued that the basis of decision in case of Mafatlal Industries Ltd. (supra) that any change in law even with retrospective effect brought about much later, would not enable the petitioner to claim benefit of such change in view of the fact that the adjudicating authority's order was not challenged by the petitioner. 11. In the present case, however, as already held by us, the petitioner was never served with such orders. It was therefore, that when the law was changed to its retrospective effect by virtue of introduction of proviso to section 18 of the Central Excise Rules and enactment of section 88 of the Finance Act, 2008, that the petitioner labouring under the impression that rebate claims were still pending adjudication before the Assistant Commissioner, wrote on 14.5.2008 and requested that in view of such amendment, the rebate claims be sanctioned. It was on this application that the Assistant Commissioner passed vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st that even after the Assistant Commissioner allowed all rebate claims, the petitioner could have traced back the earlier orders of 8.3.2006 and 8.3.2008 rejecting such rebate claims and prefer appeals, can simply not be accepted. By virtue of Assistant Commissioner's further order passed in March, 2008, all rebate claims of the petitioner were allowed. He thereafter had no cause for preferring any appeal. In fact, it was the department which was aggrieved and therefore, rightly filed appeals before the Commissioner. 15. Under the circumstances, in our opinion, the law retrospectively amended must be applied to the rebate claims of the petitioner. It is undisputed that such retrospective amendment in the statute covered all rebate claims. Therefore, if the petitioner's rebate claims were pending either before the adjudicating authority or the appellate authority or the revisional authority, when such amendments were introduced, such amendments had to be applied to such pending proceedings. Resultant effect would be that rebate claims were granted. Merely because the petitioner was prevented from preferring such further proceeding on account of the orders passed by the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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