COMMISSIONER OF CENTRAL EXCISE Vs. GTC INDUSTRIES LTD

JUDGEMENT

(1.) THIS appeal was admitted on the following questions of law.

(2.) THIS appeal is filed by the Commissioner of Central Excise, Mumbai-V challenging the order dated 24/8/2005 passed by the CESTAT. The respondent-assessee had filed a refund claim on 12/9/1994 seeking refund of Rs.1,13,006.50 being the amount paid as duty during the period from 29/4/1994 to 31/5/1994. The refund claim was adjudicated by the Assistant Commissioner of Central Excise, Mumbai-II, Division-6 vide order dated 23/8/1995 . By the said order, the refund claim was rejected on the ground that the activity of embossing and cutting to shape the duty paid aluminium foil constituted manufacture and therefore duty paid on such activity cannot be refunded. Being aggrieved by the said order in original, the assessee preferred an appeal before the Commissioner (Appeals) Central Excise, Mumbai V who by order dated 3/8/1999 allowed the appeal of the assessee, by holding that no marketable commodity came into existence on account of embossing / cutting to shape the aluminium foil purchased by the assessee and consequently duty paid on such activity is liable to be refunded. Thereafter the Revenue challenged the said order of the Commissioner (Appeals) before the CESTAT and the CESTAT by its order dated 24/8/2005 dismissed the appeal of the Revenue and maintained the order passed by the Commissioner (Appeals) Central Excise and directed the original authority to deal with the refund in accordance with the provisions of section 11(B) of the Central Excise Act,1944. Being aggrieved by the said order of the CESTAT the Revenue has filed this appeal under section 35(G) of the Act.

(3.) AS regards the question of allowing refund subject to the provisions of Section 11-B of the Central Excise Act, the revenue cannot have any grievance in respect thereof. Once it is held that the assessee is entitled to refund then, such refund can be allowed only subject to the provisions of Section 11-B of the Central Excise Act,1944.