COMMISSIONER OF CENTRAL EXCISE, SURAT Vs. GHODELA IMPEX

JUDGEMENT

(1.) THE respondents filed a refund claim for Rs. 12,61,982/ - which was rejected by the original adjudicating authority. On an appeal filed by the respondents, the Commissioner (Appeals) set aside the order and held that the respondents are eligible for the refund claim for the refund claimed by them. However, when the respondents approached the jurisdictional Assistant Commissioner for payment of the refund claim as determined in the order in appeal, the Assistant Commissioner re -determined the amount of refund as Rs. 7,61,174/ - based on the report of a Superintendent. This order dated 18 -12 -06 was challenged by the respondents by filing an appeal before the Commissioner (Appeals). And the Commissioner (Appeals) in the impugned order held that the order of the Assistant Commissioner was not correct since it was not open to him to sit over judgment on the order passed by higher appellate authority and therefore he should have sanctioned refund of Rs. 12,61,982/ - as determined by the appellate authority on 24 -12 -2004 without challenging the same before the Tribunal. The revenue is in appeal against this order.

(2.) THE advocate for the respondents sought adjournment. However, the learned SDR on behalf of the revenue submits that the department had challenged the order of the Commissioner (Appeals) dated 24 -12 -2004 which was decided by the Tribunal vide Order No. A/2502/WZB/AHD/2008 dated 26 -11 -2008. In this order the Tribunal had reminded the matter back to the original adjudicating authority to verify the correctness of the refund amount on the basis of factual verification as to whether the raw materials were of indigenous are of foreign origin. Therefore the original adjudicating authority will have to arrive at a correct admissible refund amount. The present impugned order has arisen as a consequence of the earlier decision of lower authorities and therefore once the earlier decision has been reminded for decision afresh, the appeal filed by the Revenue becomes infructuous.

(3.) IN view of the fact that the remand order of the Tribunal requires the original adjudicating authority to work out the correct amount of refund admissible, the present order which has been appealed against by the revenue cannot be implemented. Since the cause of action itself is to be decided afresh, the subsequent proceedings become infructuous. Accordingly, the order of the Commissioner (Appeals) has to be set aside. Since there is no option other than this, the adjournment request by the learned advocate for the respondents has not been considered and the appeal has been taken up for consideration and allowed. Before parting it has to be stated that when the case was presented by the learned SDR it was felt that appeal filed by the revenue is infructuous. But later it was found that in this case there is only one decision possible that is to allow the appeal and therefore instead of holding appeal filed by the Revenue infructuous, appeal has been allowed. (Pronounced in Court)