At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
By, THE HONORABLE JUSTICE: ARCHANA WADHWA
For Petitioner: V.S. Manoj Kumar, Advocate And For Respondents: S. Subramaniyam, AC (AR)
1. After hearing both sides, I find that the appellant who is an exporter of services, filed refund claim of accumulated Cenvat credit, in terms of the provisions of Rule 5 of Cenvat Credit Rules, with their jurisdictional Assistant Commissioner of Commissionerate-I. The said refund claim was sanctioned by the Assistant Commissioner. Revenue filed appeal before the Commissioner (Appeals), on the ground that Commissionerate-I was not having any jurisdiction over the assessee's factory and the refund claim should have been filed with Commissionerate-III, who had the proper jurisdiction. The Commissioner (Appeals) accepted the Revenue's appeal and set aside the impugned order passed by the Assistant Commissioner, Commissionerate-I, on this sole ground itself.
2. Feeling aggrieved with the said order of the Commissioner (Appeals), assessee filed the present appeal.
3. Ld. Advocate appearing for the appellant submits that they are registered with Commissionerate-I, has been filing their returns with Commissionerate-I and as such filed the refund claim with Commissionerate-I only. As such the refund claim was filed with the Commissionerate having jurisdiction over them. If Commissionerate-I was not having jurisdiction, it was for the authorities to say so and not to decide their refund claim. He also submits that the refund has already been sanctioned to them and the division of the Commissionerate is only for ease of working and the department is one only and the refund actually sanctioned by the authorities cannot be rejected on the hyper technical grounds.
4.1 After hearing the ld. DR, I find that there is no dispute about the facts and nor about legal issue and the appellant's entitlement to the refund of the accumulated Cenvat credit. The only ground on which the Commissioner (Appeals) has set aside the order of the lower authority sanctioning refund is that the officer was not having jurisdiction inasmuch as the refund should have been filed with Commissionerate-III. In the absence of any dispute about legality of the refund claim or about appellant's entitlement to the same, I find that setting aside the order by the Commissioner (Appeals) is not justified. In case, the officer who sanctioned the refund claim was not having jurisdiction over the appellant, it was for him to return the papers back to the assessee for proper filing or to transfer the same to the correct Commissionerate. In any case, the appellate authority set aside the order instead of remanding the matter to be re-adjudicated by the proper officer.
4.2 At this stage, I do not deem it fit to remand the matter to the proper Commissionerate/Officer as the
Please Login To View The Full Judgment!
refund has already been sanctioned and there is no dispute about merits of the refund. Accordingly, I set aside the impugned order and restored the order of the original adjudicating authority with consequential relief to the appellant, if any, as per law. Appeal is allowed in above terms.