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TMI Blog2011 (3) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent wanted to take benefit of Rule 16(1) of Central Excise Rules, 2002 and gave intimation to the Range Superintendent regarding the fact that the goods had been returned by the dealer and they wanted to take Cenvat credit of duty paid on the returned goods. They had a difficulty that the goods returned were from different lots cleared to the dealer and hence it had not came back under the invoices on which it were cleared but under cover of a debit memo issued by the Dealer. So they sought permission under Rule 16(3). The Inspector of Central Excise, who visited the factory verified the goods and made an endorsement that the Respondent may keep separate account for these goods. Thereafter, the matter travelled to the Divisional A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner rejected the refund claim on the ground that the Respondent failed to follow the provisions of sub-rule (1) of Rule 16 of Central Excise Rules 2002 and did not disclose the process undertaken on the returned goods as required under Rule 16(2) of Central Excise Rules, 2002. He also raised the ground that these goods were not accompanied by any duty paying documents and in the absence of any serial number it could not be proved by the Respondent that the returned goods were the same on which duty was already paid. He also observed that the claim of the Respondent under Rule 16(3) of Central Excise Rules 2002 was rejected by the Commissioner of Central Excise, Delhi-II on the ground that the Respondent had not sought prior p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. I also note that during the entire course of these events, the Respondent has acted bonafidely and had taken all steps to keep the department informed. The department has not been willing to give a decision allowing his claim or disallowing the claim giving justifiable reason for such decision. This shows that during the entire proceedings, the Respondent was not at fault. This is typically a case where the Commissioner had the necessary power vested in him under the relevant rule. But he simply quoted a reason not stated in the rules and without giving an opportunity to hear the affected party, passed a very short order and got it communicated through his subordinate. On the other hand, the Commissioner (Appeals) has passed speaking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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