COMMISSIONER OF CENTRAL EXCISE Vs. ONIDA SAKA LTD.

JUDGEMENT

(1.) IN this appeal the Revenue has contested the validity of the impugned order -in -appeal vide which the Commissioner (Appeals) has reversed the order -in -original and allowed the refund claim of the respondents with interest.

(2.) THE learned SDR has contended that since the adjudication proceedings for the duty demand are pending against the respondents on remand by the Tribunal, the refund claim could not be allowed being premature. Therefore, the impugned order deserves to be set aside. On the other hand, the learned Counsel has argued that the duty was deposited by the respondents much earlier to the initiation of the demand proceedings and that even after the remand of the case by the Tribunal vide Final Order dated 4 -5 -2001, no adjudication has taken place and there being no confirmed duty demand against the respondents, they are entitled to the refund of the amount.

(3.) WE have heard both the sides and gone through the records. We find that the respondents deposited the duty amount by debiting the same under protest under Rule 233 -B of the Rules as per the audit objection, but so far the department has not been able to sustain that objection and confirm the duty demand against them. After the remand of the case by the Tribunal through the remand order, the adjudication has not been finalised. Since, no duty amount is outstanding against the respondents, for debarring them from claiming the refund of the duty already deposited by them under protest, the Commissioner (Appeals) has rightly observed that the refund claim of the respondents is not premature.