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TMI Blog2011 (5) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order-in-appeal No. 272 to 287/2009 (Ahd-II) CE/CMC/ C(A)/Ahd/S/21/A-II/09, dated 2-9-2009 passed by Commissioner of Central Excise (Appeals-I), Ahmedabad. 2. Facts of the case are that M/s. Reliance Industries Ltd. Aviation Fuel Station, Ahmedabad Airport, Ahmedabad filed various rebate claims under the provisions of Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as CER 2002 ) for rebate of duty paid on clearance of Aviation Turbine Fuel (ATF) falling under sub-hearing 2710 19 20 of the first schedule to the Central Excise Tariff Act, 1985 manufactured from their factory located at Mothikavdi, Jamnagar. 2.1 The respondent had submitted the requisite documents, such as ARE-1, Central Excise Invoices, copies of Shipping Bills, Copies of Bills of lading, copy of the certificate issued by the superintendent of Central Excise Jamnagar certifying that the Central Excise duty have been paid and copy of the bank realization certificate. 2.2 The adjudicating authority had sanctioned all the above rebate claims under Section 118 of the Central Excise Act, 1944, on the grounds that the goods had been exported within six months from the date of their clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Fuel Station, Ahmedabad Airport, Ahmedabad was registered as a warehouse under Rule 9 of the CER, 2002. As such the adjudicating authority cannot be considered as the jurisdictional Assistant Commissioner under whose jurisdiction the warehouse is situated. (iii) The C.B.E. C. New Delhi vide Circular No. 758/74/2003-CX., dated 29-10-2003 has designated Maritime Commissioner in all Commissionerates of Central Excise under whose jurisdiction the port, airport, land customs station or port office of exportation is located. The definition of Maritime Commissioner has also been amended suitably as per Notification No. 79/2003-C.E. (N.T.) and 80/2003-C.E. (N.T.) both dated 29-10-2003. As per the amended definition, the Maritime Commissioner has been defined as Commissioner of Central Excise under whose jurisdiction one or more of the port, airport, land customs station and post office of exportation is located. The adjudicating authority i.e. Assistant Commissioner has not been declared as Maritime Commissioner for the purpose of sanctioning of rebate of duty of excise paid on the goods exported under Rule 18 of the Central Excise Rules, 2002. Therefore the impugned orders sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decessor notification refers only to the Commissioner of Central Excise, it has been the practice not only in Ahmedabad-II Commissionerate but all over India in different Commissionerates to lodge claims for rebate with the office of the Assistant Commissioner working under the office of the Commissioner of Central Excise. To applicant s knowledge, no rebate claims are ever filed directly with the office of the Commissioner nor are such rebate claims processed by the Commissioner himself. 4.4 Applicant respectfully submits that Section 11B of the Central Excise Act 1944, which is the statutory provision of law in terms of which rebate is sanctioned specifically provides that a claim for rebate has to be filed with Assistant/Deputy Commissioner. The claim filed by the applicant is in consonance with this statutory provision, the impugned order holding that a claim for rebate ought to be filed with the Commissioner of Central Excise is clearly contrary to provisions of Section 11B and thus deserves to be quashed and set aside on this ground alone. 4.5 Applicant further submits that a claim if bona fide filed in an incorrect office and the same is accepted without demur and not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai Tribunal in the case of TAFE Limited v. Commissioner of Central Excise, Chennai-I [2008 (227) E.L.T. 80 (Tri.-Chennai)], the Tribunal held as under : The rebate claim filed by the applicant was entertained by the original authority and the rebate sanctioned. In review order of the original authority was not found to be defective except for the lack of jurisdiction . As the rebate claim was found to be in order in review except for the jurisdictional aspect, I find that it is necessary for the applicants to approach the jurisdictional Assistant Commissioner TAL to undertake the same exercise which is of no material consequence. As was urged by the Counsel for the applicants, a different Assistant Commissioner sanctioning the refund involves only an administrative adjustment of funds disbursed as rebate for statistical purposes. Moreover, a similar sanction order No. 1/96, dated 31-5-06 passed by the Assistant Commissioner, Chennai-I Division, Chennai-II Commissionerate in a claim of similar facts has been accepted by the department and no appeal filed against the same. In the circumstances, the appeal filed by TAFE is allowed restoring the order-in-original No. 4/06 RB date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to these depot at Ahmedabad Airport on payment of appropriate duty. The said goods (ATF)is cleared to foreign going aircrafts under claim of rebate. The rebate claims filed initially were found in order and sanctioned by the Assistant Commissioner of Central Excise, Div.-I, Ahmedabad-II. Commissioner of Central Excise Ahmedabd-II reviewed these orders and appeals were filed before Commissioner (Appeals) who allowed the same. Now applicant has filed revision application before the authority on the grounds stated in para 4 above. 8. Government notes that initially ACCE, Div.-I, Ahmedabad-II sanctioned the rebate claim as the procedure and conditions specified in Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of Central Excise Rules, 2002 stood complied with. After review of impugned orders by Commissioner of Central Excise, Ahmedabad-II,/appeals were filed before Commissioner (Appeals) on the ground that Assistant Commissioner of Central Excise Div.-I, Ahmedabad-II did not have the jurisdiction to sanction the rebate claims as the rebate claims could be sanctioned either by the DC/ACCE, Jamnagar having jurisdiction over the factory manufacturing the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as Maritime Commissioner. So the minor lapse of non-designating ACCE as Maritime Commissioner cannot be reason for penalizing the applicant by recovering the already sanctioned rebate claim. Hon ble Supreme Court has held in the case of Priyanka Overseas Pvt. Ltd. - 1991 (51) E.L.T. 185 (S.C.) that the revenue cannot take advantage of its own wrong. Hon ble Tribunal (Chennai Bench) in the case of TAFE Ltd. v. CCE, Chennai-I, 2008 (227) E.L.T. 80 (T. - Chennai) held as under : The rebate claim filed by the applicant was entertained by the original authority and the rebate sanctioned. In review order of the original authority was not found to be defective except for the lack of jurisdiction ... As the rebate claim was found to be in order in review except for the jurisdictional aspect, I find that it is necessary for the applicants to approach the jurisdictional Assistant Commissioner TAL to undertake the same exercise which is of no material consequence. As was urged by the Counsel for the applicants, a different Assistant Commissioner sanctioning the refund involves only an administrative adjustment of funds disbursed as rebate for statistical purposes. Moreover, a similar s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) that Deputy Commissioner/Assistant Commissioner of Central Excise having jurisdiction over the warehouse is empowered to sanction the rebate claim and it was not coming out from the impugned orders-in-original that M/s. Reliance Industries, AFS Ahmedabad Airport, was registered as warehouse under Rule 9 of Central Excise Rules, 2002. Para 8.1 of C.B.E. C. Excise Manual of Supplementary Instructions clearly stipulates that Deputy Commissioner/Assistant Commissioner of Central Excise having jurisdiction over factory of production of export goods or the warehouse, or the Maritime Commissioner is empowered to sanction the rebate claim. The warehouse as defined in Rule 2(h) of Central Excise Rules, 2002 means any place or premises registered under Rule 9. Applicant has contended that they are Registered as a warehouse under Rule 9 of Central Excise Rules, 2002 under Registration No. AAACR 5055KXD170. The rebate claims are filed with Assistant Commissioner of Central Excise having jurisdiction of warehouse, from where goods are cleared for export, who is empowered to sanction rebate claim as discussed above. 12. In view of above discussions, Government sets aside the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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