Full Judgment
2. The appellants filed two refund claims of Rs. 89,712.78 and Rs. 1,29.702.97, both on 24.9.1997 in respect of goods cleared by them earlier on payment of duty and returned to them in terms of the provisions of this rules. These refund claims were however, rejected by the Assistant Commissioner of Central Excise, Chandigarh vide his Order dated 16.7.1999/5.8.1999 by observing that the party had given intimation of the receipt of the rejected goods but they failed to submit duty paying documents against which the said D-3 intimation was filed. He has observed that since the party has failed to provide the duty paying document in support of their refund claims as required under Rule 173-H, the affidavit submitted is not sufficient to prove that these are the same goods which were initially cleared on 30.12.95.
They have therefore, failed to substantiated their claim and the refund claimed by the party is not admissible.
3. The appeal of the party stood rejected by the Order dated 27.6.2000 of Commissioner (Appeals). I have heard shri Sundeep Singh, Advocate for the appellants and shri A.K. Jain, JDR for the Respondents. The learned Counsel for the appellants submits that the lower authority have relied on the provisions of sub-rule (2) of Rule 173-H which do indeed provide for accompanying the excisable foods by the duty paying documents. However, even in this rule by virtue of the proviso to sub-rule (2), the Commissioner can grant the relaxation. In this regard if he is satisfied with the identify of the goods which could be established by other collateral evidence. The Learned Counsel however, contended that their case is not under Rule 173-H, but the refund claims preferred by them are under the provisions of Rule 173-L which does not contain any stipulation on the return of excisable goods to be accompanied by the duty paying documents parallel to the one under Rule 173-H and under the circumstances, the Deptt. can verify the duty paying nature of the returned goods by other collateral documents. It is contended that denying the refund among on the sole ground of non-availability of the original duty paying documents is not justified and therefore, the orders passed by the lower authorities, should be set aside.
5. Shri A.K. Jain JDR appearing on behalf of the Respondents reiterates the findings recorded by the lower authorities.
6. I have carefully considered these submissions made before me. I find force in the submissions of the appellants that the reliance placed by the lower authorities in denying the refund of the impugned amounts on the provisions of Sub-rule (2) of Rule 173-H is mis-placed. Especially when there are in built provisions in this rule itself to relax this requirement, if the Commissioner is satisfied that the identity of the goods can be established by the collateral evidence. I therefore, set aside the orders passed by the lower authorities and remand the matter to the original authority to re-consider the claims of refund of the party in the light of the provisions of Rule 173-L, under which these have been preferred. It is made clear that the original authority would be free to rely on any other prescribed procedure in the course of the re-consideration of the refund claims but in any such event the party should be given due notice and afforded reasonable opportunity to state their case before a final decision is taken in the matter.