COMMISSIONER OF C. EX., BANGALORE Vs. ITC LTD.

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Appeal No. 73/2005 -C.E., dated 18 -3 -2005. Revenue is in appeal in this case.

(2.) RELEVANT facts that arise for consideration are as under : - M/s. ITC Ltd., Bangalore have preferred a refund claim with the Department to the tune of Rs. 3.76 crores. A provisional assessment order was passed and the Central Excise duty due thereon was collected from the appellants from 1 -10 -1975 to 28 -2 -1983 provisionally consequent upon a valuation dispute of their products i.e. Cigarettes. The Department finalized this provisional assessment on 30 -8 -2002 after a protracted dispute. Consequent upon this finalization the Department, assessee noticed that they had paid Rs. 3.76 crores more than what is due from them during the relevant period, and the Department asked them to claim refund of the same and accordingly they preferred this refund claim on 19 -4 -2003. Prior to 1 -10 -1975, also the Department finalized provisional assessment and demanded differential duty to the tune of Rs. 3,00,07,511.57 which pertains to the period from 17 -7 -1973 to 30 -9 -1975. Since the appellants contested this demand in an appeal filed to this authority, an order -in -appeal bearing No. 143/2004 dt. 13 -8 -2004 was passed by this authority directing the Assistant Commissioner, A Division, Bangalore to adjudicate the case De novo and re -quantify the demand keeping in view certain guidelines given to him. The respondents have requested to adjust this re -quantified demand to their refund claim. The refund claim of Rs. 3.76 crores of the respondent was sanctioned by the Asst. Commissioner A Division, Bangalore and ordered for crediting the same to Consumers Welfare Fund Account as he felt that the claim did not pass through successfully the test of unjust enrichment vide the Order -in -Original. Aggrieved by such an order Revenue came in appeal before this Bench. This Bench vide its Final Order No. 1939/2006, dt. 22 -11 -2006 [2007 (210) E.L.T. 193 (Tribunal)] had dismissed the appeal and miscellaneous application filed by the Revenue on the ground that the authorization was improper. Aggrieved by such an order, Revenue preferred an appeal to the Honble High Court of Karnataka in Central Excise Appeal No. 39 of 2007 [2008 (221) E.L.T. 331 (Kar.) = 2009 (13) S.T.R. 333 (Kar.)]. This appeal was disposed of finally by their lordships vide their order dt. 30 -10 -2007 wherein their lordships had set aside the Final Order dt. 22 -11 -2006 [2007 (210) E.L.T. 193 (Tri. - Bang.)] restoring the appeal and remanded the matter for fresh consideration. Hence, this matter is being posted before us.

(3.) LD . Counsel appearing on behalf of the Revenue gave us an overall view of the facts as herein above. Ld. Counsel for the Revenue would submit as under : -