TMI Blog2014 (11) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 2008 was not an order rejecting his refund claim. In our view, the petitioner could bona fide hold such a belief, though as held by this Court, such a belief was erroneous. Firstly because, the Deputy Commissioner returned the application along with annexed documents to the petitioner. In our experience, when the authority decides to rejects the refund application, we have never come across an incident where the application itself is returned. Secondly, the normal procedure is to issue show cause notice why such refund application should not be rejected before final decision is taken. All quasi judicial orders passed by the Dy. Commissioners which are appealable also come with format specifying that the order is appealable, the period within which such appeal could be filed and the appellate authority before which the appeal could lie. In the present case, admittedly no such steps were taken by the Deputy Commissioner. He summarily disposed of the petitioner’s refund application by returning the application and the annexures accompanying it. If, therefore, the petitioner held a honest belief that his application was not rejected but only returned and he therefore persuaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - respectively. The petitioner has further prayed for refund of such amount. 4. The petitioner s first refund claim of ₹ 71,22,270/- met with a response from the Deputy Commissioner under his communication dated 26th May, 2008, which reads as under : Please refer to your letter dated 1-10-2007 under which you have forwarded the refund application under Rule 5 of the Cenvat Credit Rules, 2002 read with Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 along with photocopies of certain documents through speed post, received by this office on 20-5-2008. In this connection, it is to inform you that you have forwarded the following photocopies of the documents : (1) ARE-1 No. 03, dated 26-5-2007. (2) Shipping Bill No. 5279323, dated 25-5-2007. (3) Proforma Invoice No. SRE/001/07-08, dated 16-4-2007. (4) Mate Receipt No. 75110, dated 14-6-2007. (5) Central Excise Invoice No. 03, dated 26-5-2007. (6) Cenvat Credit Account input [RG 23A Pt-II] Page No. 27/Feb-2007, 29/March-07, 01 02/April 2007 04/May-07, 05/June-07 06/july-07 (7) Cenvat Stock Account Inputs (Form 23A Pt-I) Page No. 16/Jan-07, 08 17/Feb-07, 02 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that refund was not payable. 6. On 10th January, 2009, the petitioner raised further refund claim of ₹ 17,08,758/-. Case of the petitioner is that this refund application was never considered by the authority, at any rate there was no communication in response to the same. The case of the Department is that such refund application was replied under communication dated 18th February, 2009 in which, Deputy Commissioner, Central Excise, Division-III, Silvassa conveyed as under :- Please refer to your letter Ref. No. NIL, dated 10-1-2009 received by this office on 9-2-2009 on the above subject matter. In this connection, it is to inform you that vide above referred letter you have requested to Refund of un-utilized balance in the RG 23 Part II Cenvat Credit for an amount of ₹ 17,08,758/- consequent on surrender of Registration Certificate No. ACGPC8212JXM001. However, as per the existing Rules, Notification issued and procedure laid down under the Central Excise Law, there is not such provision available for granting refund of un utilized balance lying in Cenvat Credit Account consequent on surrender of Central Excise Registration Certificate, Further, yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz., 123 Brand Mouth Freshners does not amount to manufacture. In the said communication, it is specifically mentioned that under the circumstances, you are not eligible for the refund of the Cenvat Credit under Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 issued under Rule 5 of the Cenvat Credit Rules, 2004. Therefore, the application along with photocopies of relevant documents is returned herewith . Under the circumstances, in view of the aforesaid communication dated 26-5-2008, no further order is required to be passed, as it can be said that the refund applications of the petitioner are as such decided. Under the circumstances, when it can be said that by communication dated 26-5-2008, the refund application of the petitioner for Cenvat Credit have been rejected, there is no question of again directing the respondents to decide the refund applications. As stated hereinabove, no other reliefs have been sought. Even communication dated 26-5-2008 holding that the petitioner is not eligible for the refund of the Cenvat Credit, is also not under challenge. 6.0 In view of the above, present Special Civil Application is disposed of, as no further order is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit, for which show cause notice was issued and was pending. 11. On the other hand, learned counsel Shri Gupta for the petitioner submitted that the petitioner was all along under bona fide belief that the Deputy Commissioner had not rejected the petitioner s refund claims. The petitioner was, therefore agitating before the said authority for passing an order, which could be appealed against; if it was adverse. In any case, this Court granted liberty to challenge the order of Deputy Commissioner in accordance with law. 12. To our mind, certain things are very clear. On 26th May, 2008, the Deputy Commissioner replied to the petitioner s first refund claim of ₹ 71,22,270/- stating that the petitioner was not eligible for refund. He finally conveyed that, ..therefore, the application along with photocopies of relevant documents is returned herewith. His order was based on two considerations first, that the petitioner had supplied photocopies of certain documents and not the originals. Secondly, that the refund claim was with respect to Cenvat Credit in respect of input used in the manufacture of final product and in regard to which, a show cause notice for recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncident where the application itself is returned. Secondly, the normal procedure is to issue show cause notice why such refund application should not be rejected before final decision is taken. All quasi judicial orders passed by the Dy. Commissioners which are appealable also come with format specifying that the order is appealable, the period within which such appeal could be filed and the appellate authority before which the appeal could lie. In the present case, admittedly no such steps were taken by the Deputy Commissioner. He summarily disposed of the petitioner s refund application by returning the application and the annexures accompanying it. If, therefore, the petitioner held a honest belief that his application was not rejected but only returned and he therefore persuaded the cause with the said authority, we see no lack of bona fide on his part. The petitioner, therefore, requested the Deputy Commissioner to pass an order, after hearing him, which he can appeal against, if the Deputy Commissioner was of the opinion that the refund claim was to be rejected. At no stage, the Deputy Commissioner in response to the petitioner s communications conveyed to him that his refund ..... 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