SUPER ELECTRONICS LTD. AND ORS. Vs. CCE

JUDGEMENT

(1.) THESE appeals have been filed against the order dated 16.11.2000 passed by the Commissioner of Customs and Central Excise (Appeals), Patna. The issue involved in all the five appeals is whether compliance of the Tribunal's order is "an adjudication order" referred to under Section 35 -E of the Central Excise Act, 1944. Shri B.N. Narasimhan and Shri Shekhar Vyas, learned Advocates have appeared on behalf of the appellants and Shri H.C. Verma, learned DR has appeared on behalf of the Revenue. The learned Advocate submitted that the Tribunal vide its final order No. A/734/45/98 dated 28.8.1998 has allowed the refund to the appellants. In consequence to the said order of the Tribunal, the Assistant Commissioner of Central Excise, Division I, Noida has refunded the amount of Rs. 23,188/ - to the appellants. The Department in the meantime filed a Reference Application against the CEGAT's said final order. This Reference Application was dismissed by the CEGAT vide its order dated 25.5.2000.

(2.) The appellants main contention is that since they have sought for the refund claim pursuant to the final order of the CEGAT, the order in original passed by the Assistant Commissioner of Central Excise Division I, cannot be treated to be an adjudication order because he cannot pass an order over and above the order passed by the CEGAT for refund. The lower authorities were only to comply with the order passed by the Tribunal and it is a well settled law as well as the CBEC has also issued instructions in this regard that when an order for refund has been passed by the Tribunal, the lower authorities can merely on a simple letter being submitted by the assessees, grant the refund amount. Therefore, under any circumstances, the order passed by the Assistant Commissioner cannot be treated to be an adjudication order and as such, the question of same being reviewed by the Commissioner does not arise. I have heard the rival submissions, perused the records and I am in full agreement with the learned Counsels that in the facts and circumstances of the case, the order of the Assistant Commissioner granting refund cannot be said to be a judicial order. The appeals filed by the appellants are accordingly allowed with consequential benefit, if any.