TMI Blog2014 (6) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 various orders including one produced at Annexure-C dated 23.5.2008. All rebate claims which pertained to the period of 1.3.2002 to 7.12.2006 covered under the retrospective operation of the statutory provision, were granted. 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 adjudicating authority were not communicated to the petitioner, situation cannot change. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding anything contained in any order, judgement or decision of any Court, tribunal or authority, rebate of excise duty paid under the said notification was permissible in respect of exports covered during the period of 1.3.2002 to 7.12.2006. It is also not in dispute that all the rebate claims of the petitioner pertained to exports made during the said period. 4. Labouring under the impression that rebate claims were still pending before the Assistant Commissioner, the petitioner wrote a letter on 14.5.2008 and stated as under : Dear Sir, We filed Rebate Claims under rule 18 of central excise for the duty paid through PLA amounting to Rs.1300 lakh approx up to 07.12.2006 which are pending/rejected by your office. The Govt. of India vide enactment in the finance bill 2008 has allowed the rebate of the duty which has been paid from the PLA account retrospectively from 01.02.2002 to 07.12.2006 vide section 8B of the finance Act 2008 read with 6th schedule. In view of the above amendment we hereby request you to sanction our rebate claims pending with your office at earliest. 5. The Assistant Commissioner, thereupon passed several orders one of which dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icants filed rebate claims before jurisdictional Assistant Commissioner of Central Excise. Show-cause notices were issued proposing rejection of rebate claims on the ground that amount of duty paid through PLA on such exported goods was already refunded to them by way of self recredited in terms of notification No.39/01-CE(NT) dated 31.07.2001. The adjudicating authority rejected the said rebate claims vide Orders-in-original No. 14 to 20/AC /06-07 dated 08.03.2007, 01/AC/06 dated 08.03.2006 and applicant did not file any appeal against said orders as mentioned by Commissioner Appeals in his Orders-in-Appeal No.02 to 259/2009 dated 09.01.2009. Subsequently original authority sanctioned the said 127 rebate claims vide 127 Orders-in-Original of 2008 as mentioned in para 2.2 above. The department reviewed the said rebate sanction orders and filed appeals before Commissioner(Appeals) on the ground the original authority has no power to reopen the case suo motu once it has been adjudicated rejected by him by issuing an appealable order. Commissioner(Appeals) vide orders-in-appeal No.2 to 259/2009/Comm(R)/RAJ dated 09.01.2009 allowed the department's appeal by setting aside impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment observes that the Commissioner (Appeals) decided the cases vide impugned orders-in-appeal dated 24.07.2012 in favour of the department by holding that the jurisdictional adjudicating authority having rejected the rebate claims initially, cannot reopen his own orders suo motu and sanction the rebate to the applicants and set aside the impugned 127 Orders-in-Original rebate sanction orders of 2008 mentioned in para. 2.2 above (which were also earlier set aside vide Orders-in-Appeal NO.2-259 dated 09.01.2009). 9. Applicant has contended that the initial show cause notices issued proposing rejection of these rebate claims were pending and in the meantime the retrospective amendment in Rule 18 of the Central Excise Rules, 2002 came into existence by virtue of section 88 and sixth schedule of the Finance Act 2008 allowing such rebate claims for the period 01.03.2002 to 07.12.2006, that in pursuance to said amendment Assistant Commissioner Central Excise has rightly sanctioned their rebate claims. In this regard, Government notes that Commissioner (appeals) has categorically recorded in his Orders-in-Appeal 02 to 259/09 that said rebate claims were initially rejected by Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consonance with the amendment, as if the law existed on the relevant date. The Retrospective amendment does not confer any power to the original authority to undo or alter any action already taken or completed by him. The words and phrases employed in sub-section (2) of section 88 of the Finance Act, 2002 categorically emphasize that any action taken or done or purported to have been done at any time during the period commencing on and from the 1st day of March, 2002 and ending with the 7th day of December, 2006 under the rule as amended by sub-section (1) shall be deemed to be and always to have been, for all the purposes, as validly and effectively taken or done, as if amendment made by sub-section (1) had been in force at all material times. The amendment, thus emphasized that if any benefit had been extended or allowed before this retrospective amendment, it protects the action already taken during the said period, as if validity and effectively taken during the aforesaid material period between 01.03.2002 to 07.12.2006. At the cost of reiterating, it has to be observed that is not intended to undo an action taken by the lower authority, let alone reopening of cases. Any ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-Appeal as held in para 10.1 above. The initial Orders-in-original dated 08.03.2006 rejecting rebate claims have already attained finality. In case of other two parties M/s Welspun Corp. ltd and M/s. Welspun Trading India Ltd., the initial Orders-in-Original rejecting rebate claims were challenged before Commissioner (Appeals) who upheld the same. Thereafter, said Orders-in-appeal were challenged in revision applications before Central Government. So facts of instant case are altogether different. Therefore, in view of above position the ratio of GOI revision order dated 28.06.2013 cannot be made applicable to this case for the reason stated above.' 8. From the submissions made before us and the documents on record, what emerges is that the petitioner's rebate claims though were rejected by the Assistant Commissioner on 8.3.2006 and 8.3.2007, according to the petitioner, such orders were never communicated to the petitioner company. The respondents have not accepted this aspect. However, in the affidavit in reply, it is stated that the office of the concerned Assistant Commissioner having been shifted in the year 2008, some of the documents were not traceable. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be read in isolation as to conclude that the petitioner was communicated the decision of the Assistant Commissioner. 13. We have some doubt about whether the Assistant Commissioner could have suo motu entertained such request and granted rebate claims once having already passed an order rejecting them earlier. If the petitioner was served with such orders and had chosen not to appeal against such orders, a serious question would arise, whether any retrospective amendment in the statute would enable the petitioner to revive such claim. In the present case, however, the petitioner was denied any opportunity of challenging the order passed by the Assistant Commissioner because such orders were never served to the petitioner. Had the orders being served, the petitioner could have availed the remedy and challenged the same before the Commissioner and if unsuccessful further before the tribunal. Therefore, the logic adopted by the Commissioner on the basis of decision in case of Mafatlal Industries Ltd. (supra), cannot be applied in the present case. 14. For the same reason, the contention of the counsel for the Revenue that atleast when the petitioner came to know about the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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