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TMI Blog2016 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... severe financial crisis being faced by the petitioners. At the relevant time, the petitioner Company was registered with the Central Excise Department as a manufacturer. In the normal course of its business, the petitioner Company purchased various consignments of Rainbow Mouth Freshner (Pan Masala) in bulk pack of 40 kilograms from one M/s Unicorn Industries, having its factory at Jorthang in the State of Sikkim. The goods purchased in bulk pack of 40 kilograms each, were processed by the petitioner Company, and the goods so purchased were repacked in smaller packs/tins and thus, processes of repacking from bulk to retail packs and also labelling of such retail packs had been undertaken by the petitioner Company, which constituted "manufacture" as contemplated under Chapter Note No.4 of Chapter 21 of the 1st Schedule to the Central Excise Tariff Act, 1985. The petitioner Company was, accordingly, liable to pay excise duty on the goods so manufactured, that is, goods packed in retail packs and affixed with the appropriate label. The petitioner company had export orders of these goods and therefore, while exporting the goods at the price of Rs. 1822/- per kilogram, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to decide the remanded proceedings, however, to no avail. Recently, by a communication dated 31.07.2015, the petitioners once again requested the second respondent to take up the remanded case for adjudication. Since, the second respondent is not deciding the matter, the petitioner has filed the present petitions seeking the following substantive reliefs: "20. In the above premises, the petitioners most respectfully pray as under: [A] That Your Lordships may be pleased to issue a Writ of Certiorari or Writ of Mandamus or any other appropriate writ, direction or order, quashing and setting aside Order No.1351-1352/12-CE dated 01.10.2012 (Annexure - "L") passed by the Joint Secretary, Government of India, New Delhi with consequent restoration of OIA No.71/2012(AHD-III)/K.ANPAZHAKAN/ COMMR(A) /AHD dated 19.03.2012 and all benefits flowing from this order of the Commissioner (Appeals) to the petitioner Company, or in the alternative, an appropriate writ, order or direction thereby directing the Assistant Commissioner of Central Excise, Division: Gandhinagar, the 2nd respondent herein to forthwith decide the rebate claims of the petitioner Company aggregating to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities may reject the rebate claim if they do not think it proper to allow it, but they cannot keep it pending indefinitely. 5.1 The attention of the court was invited to the decision of the Sikkim High Court in the case of Unicorn Industries v. Union of India, 2013 (290) ELT 33 (Sikkim), to submit that it is the case of the respondents that M/s Unicorn Industries is not entitled to exemption as it is manufacturing Pan Masala, whereas in the case pending before the Commissioner, Vapi, it is the case of the respondent that M/s Unicorn Industries is not manufacturing Pan Masala. It was submitted that therefore, non-deciding the rebate claims of the petitioners on the ground of pendency of the SLP before the Supreme Court demonstrates the height of arbitrariness on the part of the respondents, inasmuch as, the proceedings before the Supreme Court would have no bearing on the facts of the present case. It was, accordingly, urged that the impugned order dated 01.10.2012, to the extent the revisional authority while remanding the matter for a fresh decision has directed the authority to take into account the outcome of DGCEI investigation and the final decision in class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for want of final outcome of DGCEI investigation as well as the final decision in classification matter by common adjudicator, CCE, Vapi in terms of the directions given by the revisional authority. 6.1 The learned counsel further submitted that in case the decision pursuant to the show cause notice issued by the DGCEI and the decision of the CCE, Vapi in the adjudication proceedings, are adverse to the petitioners, the interest of the revenue would be adversely affected and therefore, the interest of the revenue is required to be protected by not proceeding at this stage. Various other submissions also came to be advanced by the learned counsel for the revenue; however, considering the view that the court is inclined to take in the matter, it is not necessary to refer to or deal with the same having regard to the limited scope of inquiry in the present petitions. 7. In this case, the impugned order is dated 1st October, 2012. Since the revisional authority had merely remanded the matter to the second respondent for a fresh decision, the petitioners did not deem it fit to challenge the same at the relevant time. However, having regard to the fact that though a period of three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are still awaited, the matter cannot be determined by him. In paragraph 11 of the affidavitin- reply, he has further stated that since all these proceedings including proceedings by the DGCEI are pending and are not concluded and the same are connected proceedings and therefore, he is unable to take any decision regarding sanctioning of refund as no fresh decision can be taken without considering the outcome of the said proceedings. That as the allegations made in the show cause notices against the petitioner are pending adjudication, sanction of refund at this stage would adversely point fingers at the respondent. 10. In the opinion of this court, having regard to the nature of the directions issued by the revisional authority in its order dated 01.10.2012, no fault can be found in the approach adopted by the second respondent in not deciding the rebate claim till the investigation by DGCEI is concluded and the CCE, Vapi decides the adjudication pending before him. However, the rebate claims of the petitioners which are filed way back in the year 2011 cannot be kept pending till the outcome of other proceedings. In the opinion of this court, each case has to be decided on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Vapi, had the same already been decided on the date when the matter came to be remanded. However, since the investigation by DGCEI and the classification matter before the Commissioner of Central Excise, Vapi, were still pending on the date of the impugned order, no order could have been passed to decide the refund claim on the basis of proceedings which were to be decided in future. In other words, the rebate claims could not have been made contingent on the outcome of the said proceedings which were to be decided at a future date. In the aforesaid premises, the impugned order, to the extent the same is made contingent upon the outcome of DGCEI investigation as well as the final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi, cannot be sustained. 12. The submission advanced by the learned counsel for the revenue that in case the decision pursuant to the show cause notice issued by the DGCEI as well as the decision of the CCE, Vapi in the adjudication proceedings are adverse to the petitioners, the interest of the revenue would be adversely affected, and hence, the rebate claims are required to be kept in abeyance, are required t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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